Volume 130 — New York Reports

<p>It seems that where, in the description of premises in a deed, courses, distances and monuments are given, the premises must be located according to the deed, and all paroi evidence of the declarations and acts of the parties to the effect that a different location was intended is inadmissible, as contradicting or varying the deed; but where the description is so vague, obscure or conflicting as to leave the intent of the parties uncertain, their declarations and acts may be proven to determine the intent.</p> <p>H., was the owner of certain premises divided into two parts by a fence; on the north part was a hotel and outbuildings, the south part was used as a garden; he executed a conveyance to defendant, the description including the whole premises, “ excepting and reserving therefrom 137 feet front and rear, measuring from George Harrison’s north line, * * * being the piece of land occupied as a garden.” H. thereafter conveyed to plaintiffs the portion not conveyed' to defendant. The fence was 137 feet north of Harrison’s line at the front end, but in the rear 137 feet extends nineteen and one-half feet north of the fence, and a line run from this point to the front parallel with Harrison’s line would run diagonally through a barn or outhouse on the hotel premises. In an action of ejectment to recover possession of the triangular strip north of the fence, the court found that H., at the time of the conveyance to defendant, put him in possession of this strip, and that the same was in defendant’s possession at the time of the conveyance to plaintiff. Held, that a judgment in favor of plaintiff was error; that as there were two conflicting descriptions of the land reserved in defendant’s deed the declaraTtions and acts of the parties were proper to be considered for the purpose of showing their intent; and that putting defendant in possession of all the land north of the fence was a practical location of the line and disclosed the intent to be simply to except the garden lot.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The note in question if given for a patent-right would be absolutely void under chapter 65, Laws of New York for 1877, in not having the words “ given for a patent-right ” written or printed upon the face thereof, above the signature as thereby required, in the hands of any purchaser who is not a bona fide holder. (Laws of 1877, chap. 65; Spring v. Quance, 3 How.

The nature of the action and the facts, so far as material, are-stated in the opinion. Notwithstanding the statute apparently fully legislated upon the subject of tax sales,, the absence of any provision for service upon infants and the manner in which they might be .treated and what protection they should have, clearly shows that the charter provision should govern.

This action was begun Hovember 16, 1887, to recover a judgment: (1) For the damages to the rental value of Ho. 138 West Fifty-third street, alleged to have been occasioned by the construction and operation of the defendants’ elevated railroad in the street in front of the premises; and (2) to restrain them from thereafter continuing their road in front of the premises.

The nature of the action and the facts, so far as material, are stated in the opinion. This case is that of a gift, not to charitable objects, or purposes, or classes of persons, natural or artificial, but to one artificial person, a corporate body, named the “ Tilden Trust,” fully competent by its charter to take the bequest. The validity of such a disposition of property is not open to debate.

' The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs must prevail, if at all, on the strength of their own title. As to that portion of the lands in question which were granted to the FTew York Central and Hudson River Railroad Company prior to plaintiffs’ grant the latter have no title.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to dismiss the complaint as to the premises Yo. 100 Water street, and in receiving evidence as to the depreciation in the rental and fee value of the same.

This action was brought to foreclose a mortgage dated February!, 1879, made by Smith Lydecker and Jeannette, his wife, to Margaretha Schuler, to secure the payment of $4,000, on February 1,1882, with annual interest at the rate of seven per cent. The mortgage was collateral to a bond in the usual form, and on the 10th of November, 1888, both bond and mortgage were assigned to the plaintiff by said mortgagee.

This action was tried at the Monroe circuit on January 25, 1886. At the close of the evidence the court directed a verdict for the defendant, to which plaintiff excepted, and the court thereupon ordered the exceptions to be heard at the general term in the first instance.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department entered upon an order made April 9, 1889, which affirmed a judgment in favor of plaintiffs entered upon the report of a referee.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Under the law as it existed in 1801, when ¥m. Rhinelander, Jr., published his will, land acquired subsequently to the date of the publication of a will did not pass thereby, but vested in the heir at law. (Lynes v. Townsend, 33 N. Y. 561; Jackson v. Holloway, 7 Johns. 81; Jackson v. Potter, 9 id. 312.) Neither Wm. Rhinelander, Jr., nor his father before him had any right whatever to grants on account of the ownership of the upland.. (Mayor, etc., v. Hart, 95 N. Y. 443; Appleby v. Mayor, etc., 41 Hun, 281; 4 N. Y. S. R. 496; Furman v. Mayor, etc., 6 Seld. 567; Gould v. H. R. R. R. Co., 2 id. 522; Towle v. Remsen, 70 N. Y. 303; Langdon v. Mayor, etc., 93 id. 134; Nott v. Thayer, 2 Bosw. 25; Wendell v. People, 8 Wend. 188; Comrs. v. Kimpshall, 26 id. 410.) In order to sustain the defense of equitable title, which is the main defense herein,, it must appear that Wm. Rhinelander, Jr., actually owned the land in question at the time he made his will, and before he applied for or acquired the grant, and was then entitled to a grant from the city confirmatory of his title, without the performance of any conditions, and that the grant, when subsequently acquired was in confirmation of his actual ownership. (Lynes v. Townsend, 33 N. Y. 563; Jackson v. Holloway, 7 Johns. 394; Jackson v. Potter, 9 id. 312; McKinnon v. Thompson, 3 Johns. Ch. 307; Stevens v. Hauser, 39 N. Y. 302; Denn v. Miller, 5 D. & E. 558; Thompson v. Burhans, 61 N. Y. 52; Van Kleeck v. Dutch Reformed Church, 6 Paige, 600; Carleton v. Darcy, 90 N. Y. 566-573; Haxtun v. Corse, 2 Barb. Ch. 506; Dunham v. Townshend, 118 N. Y. 281.) Mo rights to the land were acquired by Frederick Rhinelander. (Appleby v. Mayor, etc., 4 N. Y. S. R. 96; 41 Hun, 281; Mayor, etc., v. Hart, 95 N. Y. 443.) The referee.1 erred in admitting the petition of Philip Rhinelander to the-common council, dated Hay 10, 1797, after plaintiff’s objection. (Mayer v. Osborn, 32 N. Y. 669; Hammond v. Varian, 54 id. 398; Jackson v. Luquere, 5 Cow. 221; Utica Ins. Co. v. Badger, 3 Wend. 102; Wilson v. Betts, 4 Den. 201; Martin v. Rector, 24 Hun, 27; Pollock v. Pollock, 71 N. Y. 137; Draper v. Stouvenel, 38 id. 219; Mason v. Lord, 40 id. 476; Sickles v. Flanagan, 79 id. 224; Putman v. Hubbell, 42 id. 106; Stilwell v. M. L. Ins. Co., 72 id. 385; Davis v. Spencer, 24 id. 386; Westarlo v. De Witt, 36 id. 335; Halpin v. P. Ins. Co., 28 N. Y. S. R. 788; 118 N. Y. 165.) There was no adverse possession of the premises. (Brandt v. Ogden, 1 Johns. 156; Jackson v. Parker, 3 Johns. Cas. 124; Jackson v. Birner, 48 Ill. 130; Starkie on Ev. 473; Clark v. Owens, 18 N. Y. 434, 439; Jackson v. Johnson, 5 Cow. 74; La Frombois v. Jackson, 8 id. 609, 613, 617; Jackson v. Woodruff, 1 id. 286; Enfield v. Day, 7 N. H. 457; Hale v. Glidden, 397; Zeller v. Eckert, 4 How. [U. S.] 289; Paschall v. Hinderer, 28 Ohio St. 568; Atty.-Gen. v. Fishmongers’ Co., 5 M. & C. 16, 17; Perry on Trusts [2d ed.] §§ 863, 864, 866; Thompson v. Pioche, 44 Cal. 508; 1 Redf. on Wills, 502; Schmittler v. Simon, 101 N. Y. 558; Pinney v. Johnson, 8 Wend. 500; D., L. & W. R. R. Co. v. Gilbert, 44 Hun, 201; Jackson v. Hathaway, 15 Johns. 454; Pope v. Hanner, 77 N. Y. 240; Wetmore v. Porter, 92 id. 78; Lee v. Horton, 104 id. 538; Stone v. Godfrey, 5 De G., M. & G. 76; Miller v. Downing, 54 N. Y. 631; Hallas v. Bell, 53 id. 247.)</p> <p>The premises in suit passed by the will of William Rhinelander, Jr., to his uncle, Philip Rhinelander, under whom the defendant Gallatin claims title. (Livingston v. Newkirk, 3 Johns. Ch. 312; McKinnon v. Thompson, Id. 307; Malin v. Malin, 1 Wend. 626; Warren v. Fenn, 28 Barb. 333; Terrett v. Cowenhoven, 11 Hun, 320.) The rights of the plaintiffs, if they ever had any, are barred by the Statute of Limitations. (Laws of 1801, chap. 183 ; 2 R. S. [2d ed.] chap. 4, §§ 5-17; Laws of 1870, chap. 741; Carpenter v. Schermerhorn, 2 Barb. Ch. 314; Jackson v. Moore, 13 Johns. 513; Jackson v. Johnson, 5 Cow. 74; Thorp v. Raymond, 16 How. [U. S.] 248; Doe v. Jesson, 6 East, 80; 2 Preston on Abs. 341; Fleming v. Griswold, 3 Hill, 85; Tyler on Eject. 930, 931.) William Rhine-lander was not trustee for Maria Paulding of the premises in suit. (Code Civ. Pro. § 829.) The ancient leases by the Rhinelanders and the applications by them to the common council were properly admitted in evidence. (1 Phillips on Ev. 281; Clarkson v. Woodhouse, 5 T. R. 413; 3 Doug. 189; Barnes v. Mawson, 1 M. & S. 78; Teathes v. Newitt, 4 Price, 355; 8 id. 562; Fisher v. Graves, 3 E. & Y. 1180; Hewlett v. Cock, 7 Wend. 371; Enders v. Sternberg, 2 Abb. Ct. App. Dec. 31.)</p>

Cboss-appeals from judgment of the G-eneral Term of the Superior Court of the city of Hew York, entered upon an order made June 6, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court and affirmed an order denying a motion for a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion. It was the duty of the respondent to see that all the testimony was in this case necessary to sustain the findings of fact of the referee.

The plaintiffs Hayden and Allen were creditors of the firm of G. H. Loker & Brother, residents of and doing business at St. Louis, Mo., and on the 9th day of October, 1878, commenced an action against said firm and obtained therein an attachment against their property, which attachment was on the following day delivered to the plaintiff Beilly, then the sheriff of the city of New York.

The plaintiff owns a farm, which, before any part of it was taken by railroads, contained about one hundred acres, and is situated on the east side of Main street in the city of Buffalo, In 1870 the Brie railway constructed a railroad through this farm, so dividing it that there are about fifteen acres between the land of the railroad and Main street, and about eighty-five acres east, of the railroad.

The nature of the action and the facts, so far as material, are stated in the opinion. The appeal to the General Term in this case rested only on questions of law, and no disputed question of fact was, or could properly be, considered by that court.

This action was brought to - recover damages for injuries received by plaintiff, a man seventy years of age, while attempting to get on board one of defendant’s cars in the city of New York. The facts, so far as material, are stated in the opinion. There was no negligence on the part of the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The proofs were wholly wanting in the elements from which fraud is to be inferred.

<p>Under the Mechanics’ Lien Law of 1885 (Chap. 842, Laws of 1885),- the filing of the prescribed notice originates the lien, and until this is done the laborer or material man has no preferential right to be paid out of the sum due the contractor from the owner of the building. If,, before notice is filed, the contractor assigns to a creditor in payment of his debt, the whole or any portion of the moneys due or to become due to him on his contract, the assignor is entitled to the same in preference to the lienor.</p> <p>The court may not extend purely statutory rights, such as are given by said act, beyond the terms of the statute creating them.</p> <p>An order drawn by the contractor in favor of a creditor, by its terms payable out of a sum due or to become due from the owner under his contract, when such order is given and accepted in payment of the debt, operates as an assignment pro tanto of that fund.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The •court correctly charged that if the alleged ridge was caused by •drippings from the roof defendant was not liable. (Tobey v. Hudson, 49 Hun, 319; Kaveney v. Troy, 108 N. Y. 576, 577.) The trial court and the General Term were bound to •decide the case according to the undisputed evidence, and a failure to do so was an error of law, for which the judgments below should be reversed.

affirmed as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This action was brought ‘to obtain a judgment separating the parties from bed and board forever, and was based upon an allegation that the defendant had abandoned the plaintiff in August, 1882, and refused to permit her to return to him. The defendant denied the allegation of abandonment, and alleged that the plaintiff had abandoned him in 1880.

This was an action of ejectment brought to recover the possession of certain lands situate in the county of Kings.

This was an action upon a policy of fire insurance alleged to have been issued by the defendant upon certain real and personal property belonging to the plaintiff. The answer-denied that the defendant issued the policy in question, and alleged that the same was issued by the plaintiff, as secretary of the defendant, to himself, without authority, and that it was, therefore, void.

<p>Appeal from judgment of the General Term of the Supreme '•Court in the second judicial department, entered upon an order made December 9, 1889, which affirmed a judgment in favor •of plaintiff entered' upon a decision of the court on trial at .Special Term.</p> <p>This was an action to recover from the defendants, as sureties of one Butherford, cashier of the plaintiff’s bank, the ■value of certain of its securities alleged to have been converted by him.</p> <p>The trial court found the following facts: Said Butherford was cashier of the plaintiff, a national bank, from its organization until March 19, 1887, except during a few months in the year 1886, when he was ill. The bond in question, dated February 2, 1887, is in the penalty of $4,000, and contains the condition that if said Butherford, “ honestly and in good faith, performs all the duties of cashier in the "Walden National Bank and all the duties in any manner incident thereto while acting as such cashier, and also all such duties, acts and work as may be required of the said William G-. Rutherford by the said bank or its board of directors, which shall from time to time be assented to on his part, and in all respects conduct honestly and in good faith toward or in respect to said bank, its moneys and securities and the moneys and securities of any other person or persons left in any manner with said bank, then the above obligation to be void, otherwise to remain in full force and virtue.” Prior to December 12, 1882, one Terbell owned thirty shares of the stock of said bank of the par value of $100 per share, and on that day he assigned and delivered the same to said Rutherford, in his “ individual name,” and thereupon it was transferred to him on the books of the bank, and three new certificates for ten shares each were issued to him therefor. At this time Terbell was indebted to the bank to an amount exceeding $9,000 upon certain notes made or indorsed by him and discounted by the plaintiff for his benefit. He was not indebted to said Rutherford, but was in financial difficulties and wanted to secure the bank. Said stock was thus transferred to Rutherford upon the understanding that it was to be held for the bank as collateral security for the payment of ” said notes. The transfer “ took place over the counter of the bank while said Rutherford was acting as its cashier, and the transaction was with him in that capacity.” ■Said Terbell “understood he was dealing with the bank and not Rutherford personally, and the only reason given at any time for assigning the stock to Rutherford instead of the bank was, as Rutherford told Terbell, because the Banking Act prohibited the bank from making loans upon the security of its own stock.” “ Said cashier, after the transfer aforesaid, put said stock in an envelope and informed the president of the bank that it belonged to Terbell, and the bank thereafter held such stock as security for Terbell’s paper, although it held it in Rutherford’s name.” December 20, 1883, Terbell made his note for $1,000, and April 1, 1884, another for the same amount, each payable to the order of Rutherford and indorsed by him, and the plaintiff discounted both for said Terbell, and at the time “ held said bank stock as security for the payment ” thereof, under the aforesaid agreement. The indorsements of Rutherford “ were in form only, and was only done to make the transaction appear regular under the ¡National Banking Laws.” The note dated April 1, 1884, was given to take up a note made by Terbell and held by the plaintiff on December 12, 1882, or in renewal of a note given for that purpose. September 1, 1886, at the request of Terbell and the plaintiff, Rutherford sold ten shares of said stock to the defendant Snyder for $1,210, which was applied on the indebtedness of Terbell to the bank, except a small sum, which was placed to his credit on the books. Up to this time the dividends upon the stock had been credited tp Terbell, and after this sale the dividends upon the twenty shares remaining were equal to the interest on said two notes, and “ they were balanced in that way by the cashier, said Rutherford.”</p> <p>January 13, 1887, Rutherford borrowed $1,000, upon his own note and for his own use, from the Goshen ¡National Bank, to which he gave as collateral security ten shares of said stock. The note was not paid, and the bank last named sold said collateral and with the proceeds paid the note. March. 18, 1887, Rutherford borrowed another $1,000 upon his own note and for his own use, from the Chase ¡National Bank, and assigned to it the remaining ten shares of said stock as collateral. That note was not paid, and that bank sold its collateral and paid its note out of the proceeds.</p> <p>Neither of the notes so held by the plaintiff was ever paid, although payment was duly demanded, and no part of said twenty shares of stock was ever returned to the plaintiff, notwithstanding due demand made of said Rutherford.</p> <p>September 10, 1887, the plaintiff recovered judgment on its notes against Terbell and Rutherford, but no part thereof having been paid, an offer was made to -the defendants to assign the same to them, “ but they declined to do anything about the matter.”</p> <p>Upon the request of the defendants the court also found that the notes made or indorsed by Terbell and held by the plaintiff on December 12, 1882, with two or three unimportant exceptions, had upon them the name of a responsible maker or indorser in addition to that of Terbell.</p> <p>The trial judge refused to find upon the like request that “ the transfer of said stock by said Terbell was made to said Butherford, and held by him. in his individual capacity as a personal matter, and he did not take and hold the stock as cashier for the plaintiff and as collateral security to the indebtedness to and for said bank,” and after so refusing, added: “ Butherford was not liable as an indorser, though one in form.” The defendants excepted generally, but did not except specifically to the addition as found.</p> <p>After finding these facts, the trial court found as conclusions of law that the transaction was not prohibited by the National Banking Act, and if it was, that the defendants could not take advantage of it in this action; that Butherford was not liable to the bank as indorser on said notes, and that the recovery of said judgment does not help the defendants, because the rule as to election of remedies does not apply ; that the defendants were not liable for the stock given to the Goshen Bank on the 13th of January, 1887, because they were not then the sureties of said Butherford, but that they were liable for the value of the other ten shares delivered to the Chase Bank March 18,1887, as that was after they had signed said bond.</p> <p>Butherford died in March, 1888, and this action was commenced about two months afterward.</p> <p>Butherford indorsed the notes in question as an individual, became personally liable to the bank, and held the stock to secure his indorsements. The bank’s acts are in harmony with such position, and his sureties are not liable. (Wheelock v. Cost, 77 N. Y. 296; Magruder v. Colston, 44 Md. 349; Hale v. Walker, 31 Iowa, 344; Dedham Bank v. Chickering, 4 Pick. 314; Brandt on Suretyship, 314; Miller v. Stewart, 9 Wheat. 680; In re B. H. M. Co., 2 Pick. 223; People v. Pennock, 60 N. Y. 421; McClusky v. Cromwell, 11 id. 590.) The transaction if as claimed by the bank and found by the court, was not in line of the regular duties of Rutherford as cashier, was out of the ordinary course of business, was not contemplated by the sureties and covered by the bond. (Moore v. M. N. Bank, 55 N. Y. 41.) The transaction was intended to be an evasion of the provisions of the United States Banking Act, and was in violation of the act. (Bank v. Lanier, 11 Wall. 369; Nat. Bank v. Stewart, 107 U. S. 616.) If Rutherford, as cashier of the bank, held the certificate of stock for the bank, then the transfer from the Chase Rational Bank to George W. Stoddard, one of the directors of the plaintiff, and its president, was made to a person who had notice of the rights of the bank, and who was not a bona fide purchaser. (McNeil v. T. N. Bank, 46 N. Y. 325; Moore v. M. N. Bank, 55 id. 41, 47.)</p> <p>The defendants’ claim that the transaction, conceding that the bank held the stock as collateral, although held in Rutherford’s name, was a device to avoid section 19 of the Banking Act (5201 of the U. S. Revised Statutes), and was, therefore, illegal, is untenable. (F. N. Bank v. Stewart, 107 U. S. 676; Nat. Bank v. Whitney, 103 id. 443; Fortier v. N. O. Bank, 112 U. S. 439; U. G. M. Co. v. R. M. N. Bank, 96 id. 640; Thompson v. S. N. N. Bank, 113 N. Y. 325.) The defendants are liable. They agreed that Rutherford “ should honestly and in good faith perform all the duties of cashier, and in all respects conduct lionestly and in good faith toward or in respect to said bank, its moneys and securities, and the moneys and securities of any other person or persons, left in any manner with said bank.” (Barrington v. Bank of Washington, 14 S. & R. 165; B. C. Bank v. Elwood, 21 N. Y. 88; Bostwick v. Van Voorhis, 91 id. 353; F. N. Bank v. Spinney, 120 id. 560; 81 Penn. St. 419.) The taking of the judgment by the plaintiff against Terbell and Rutherford is no bar to the present action against Rutherford’s sureties. (Emery v. Baltz, 22 Hun, 434; 94 N. Y. 408; Stowell v. Chamberlain, 60 id. 212; Bowen v. Mandeville, 95 id. 237.) Considerable evidence was given by the appellants, from' the records of the bank, to show extensions of time to Rutherford to make good the stock appropriated by him. Such extensions did not relieve the sureties, they were without consideration, and the sureties lost nothing by them. (Bd. Suprs. v. Otis, 62 N. Y. 88; Clark v. Sickles, 64 id. 231; A. & P. T. Co. v. Barnes, Id. 385.) The appellants objected on the trial to Terbell’s testimony of his transactions with the bank as immaterial and improper. The ruling of the trial judge was correct. (Bd. Suprs. v. Bristow, 99 N. Y. 316.)</p>

<p>No person, corporation or association, authorized to acquire and hold property, can be divested of it by the fiat of any other organization, or in any way without its consent, unless by due process of law.</p> <p>An unincorporated association of seven or more members, organized as a local assembly of the organization known as “Knights of Labor,” is not divested of title to property, contributed and owned by the associated members, by an annulment of its charter, and cannot be deprived thereof by any decree of the General Assembly.</p> <p>After a local assembly is thus deprived of its charter, an action may be maintained by its president-or treasurer to recover an indebtedness due the association. (Code Civ. Pro. § 1919.)</p> <p>The distinction between such a case and that where a member of a club or voluntary association, in which the rights of the individual members are fixed by contract, has been expelled for violation of'rules, pointed out.</p> <p>¡Reported below, 54 Hun, 614.</p>

The nature of the action and the material facts are stated in rthe opinion. Plaintiff was guilty of contributory negligence and cannot recover. (Segar v. Slingerland, 2 Caines, 219; Travis v. Barger, 24 Barb. 614; Smith v. Martin, 15 Wend. 270; Barnett v. Greathead, 49 Barb. 106; 2 Greenl. on Ev. § 578.) The court erred in admitting testimony showing a promise of marriage existing between the parties.

The judgment below “ enjoined and restrained from constructing, erecting or maintaining any dam or dams, reservoir or reservoirs, upon the Pocantico river, a stream in the town of Ossining and Mount Pleasant, county of Westchester, or any of its tributaries for any of the defendants’ purposes; and from intercepting, diverting, appropriating or using any of the waters of said river or its tributaries for the supplying of any village, or its inhabitants, with water therefrom;…

The action was brought to recover $501.25, money received by the defendant September 19, 1882, alleged to belong to the plaintiffs.

This action was brought to recover damages for the loss of service of the plaintiff’s minor daughter resulting from a personal injury to her by the falling, upon her of plaster from the ceiling of the hallway of a tenement-house fronting on East One Hundred and Fourth street in the city of Hew York, ■and for the expense of medical attendance on account of such injury. The defendant was the owner of the building and the •occupants were his tenants.

<p>' Appeal from judgment of the General Term of the Supreme Com’t in the second judicial department, entered upon an order made December 10,1889, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>. The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The action was prematurely brought. (Rogers v. Kneeland, 10 Wend. 252; Van Horne v. Crain, 1 Paige, 455; Hills v. Miller, 3 id. 254; Shaw v. Leavitt, 3 Sandf. 163; Peck v. Vandemark, 99 N. Y. 34; 2 Pars, on Cont. 499; Erwin v. Hoch, 9 Cent. Pep. 678; Thayer’s Appeal, 8 id. 479; Van Nest v. Lott, 16 Abb. Pr. 130; Atkinson v. Collins, 18 How. 235; Ladue v. Seymour, 24 Wend. 60; Champlin v. Butler, 18 Johns. 169; Jewell v. Schroppel, 4 Cow. 564; Hare v. Vandusen, 32 Barb. 92; King v. Accum. Assn. Co., 3 C. B. [N. S.] 151; Jackson v. McLean, 96 N. C. 474; McCullough v. Colby, 4 Bosw. 603; Wattson v. Thibou, 17 Abb. 184; Oothout v. Ballard, 41 Barb. 33; Smith v. Aylesworth, 40 id. 104.) The complaint does not state facts sufficient to constitute a cause of action. (Wheelock v. Lee, 1 Abb. [N. C.] 85; Emery v. Pease, 20 N. Y. 64; C. E. Ins. Co. v. Babcock, 42 id. 647; Tooker v. Arnoux, 76 id. 400; Munger v. Shannon, 61 id. 260; Bradley v. Aldrich, 40 id. 509.) The court erred in admitting evidence to prove the cost of material not used in the work by the defendant. (Gouge v. Roberts, 53 N. Y. 619; C. P. A. Co. v. Brown, 5 J. & S. 433; Van Wycklen v. City of Brooklyn, 118 N. Y. 554; Mc Carragher v. Rogers, 120 id. 533.)</p> <p>The action is maintainable. (Card v. Miller, 1 Hun, 504; Zimmerman v. Schoenfeldt, 3 id. 692; Seymour v. Cowing, 1 Keyes, 532.) Dean’s promise to pay on January 6, 1888, made that day the day of payment, and his refusal to perform his promise gave a complete cause of action. (Peck v. Goodberlett, 109 N. Y. 180; Bartholomew v. Lyon, 67 Barb. 86; Leslie v. K. Ins. Co., 62 N. Y. 27.) The motion to dismiss the complaint upon the pleadings was properly denied. (Smith v. Bodine, 74 N. Y. 30.) It was not ground for dismissal of complaint that Kingsley was interested in the action. (Sheridan v. Mayor, etc., 68 N. Y. 30.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of October, 1889, which denied a motion of the plaintiff for a new trial and directed judgment for defendant on a nonsuit granted at Circuit.</p> <p>Action to recover damages for a personal injury to the plaintiff caused, as alleged, by a nuisance maintained by the defendant in a public street.</p> <p>The complaint alleged that on the 7th of November, 1885, the defendant being the owner, and, through his tenant, in possession of certain premises situate^on State street in the city of Bochester, “ without authority of law or permission from the municipal authorities of said city,” maintained and continued under the sidewalk immediately in front of said premises “a certain vault excavated under said sidewall? * * * covered only by the stone flagging used by the public for passing and repassing; ” that said stone flagging “was insufficient and inadequate in strength, through deficiency in quality or thickness, or by reason of some other defect to the plaintiff unknown, to sustain the ordinary travel of the public ; ” that by reason of such insufficiency and by the sudden breaking of one of the flagstones upon which the plaintiff was standing, he fell into the vault and sustained serious injuries.</p> <p>The defendant, by his answer, denied certain allegations of the complaint, admitted that he owned the premises therein mentioned, but alleged that he did not own to the center of the street, nor beyond its outer line. He further alleged that said excavation was made, and the flagging over the same was laid, with the consent of the proper authorities, before he became the owner of the building; that the area and flagging were well and sufficiently made and maintained; that he had no knowledge or notice of any imperfection therein, and that the accident happened without any negligence or default on his part.</p> <p>Upon the trial it appeared that the plaintiff was injured in front of a braiding known as the Ashley Block, consisting of three stores, erected in 1876. A vault, ten or twelve feet deep, excavated at the same time in front of each store, was walled up on three sides in a substantial manner and connected on the fourth by an archway opening into the cellar of the store. Each vault was covered with flagstones, supported by solid iron girders running lengthwise of the sidewalk and resting on the walls. In the sidewalk were three openings, closed by iron doors, one in front of each store, for the purpose of raising and lowering goods. The sidewalk was ten or twelve feet wide, with three rows of flagstones. After the covered area was thus constructed, and in 1883 or 1884, the defendant purchased said block, and has owned it ever since. At the date of the purchase, the store in question was rented to one Harris, who thereupon attorned to the defendant, and he has since occupied the store under renewals of the lease. November 1, 1885, the plaintiff, a man weighing 235 pounds, was walking with a friend in front of said store, and, meeting some ladies, turned toward the west, while hie friend turned to the east, to allow them to pass. In thus taming out, the plaintiff stepped on a flagstone next to the curb and thereupon fell into the vault underneath, the stone, in two pieces, one a little longer than the other, falling with him, and he was seriously injured. Said stone was from two to two and one-half feet wide by four or five feet long and four or five inches thick. It did not appear when or how it was broken, nor whether it was defective in any respect, nor was the cause of the accident shown, except as thus stated. The plaintiff, who had an office and lodging-rooms next door to the Ashley Block, and had for years passed over the walk, testified that at the time of the accident it “ was apparently just as he had always seen it.” It did not appear expressly that the defendant had ever seen said block, or that he knew or had heard of the existence of said excavation. The evidence, from which it is claimed that notice of its existence should be inferred, is the purchase of the block by him; the receipt of rent therefor through his clerk ; the renewal of the Harris lease by him in person, and his presence on one occasion in the city of Rochester, where a witness met him “ as he was coming out of his bank.” It was admitted that “ no evidence was given of any negligence on the part of the defendant, or of his grantor, in constructing or maintaining the flagging which gave way, any further than such negligence is inferable from the accident itself.”</p> <p>The excavation under the highway, into which the plaintiff fell, was a common and public nuisance; or, strictly and properly, a perprestwre. (2 Story’s Eq. Juris. §§ 921, 922; Irvine v. Wood, 51 N. Y. 224; Dygert v. Schenck, 23 Wend. 446; Congreve v. Smith, 18 N. Y. 79; Anderson v. Dickie, 1 Robt. 238; Whalen v. Gloucester, 4 Hun, 24; Conklin, v. Phœnix Mills, 62 Barb. 299; Hotel Association v. Walters, 23 Neb. 280; Dillon on Mun. Corp. §§ 1032, 1033; Clifford v. Dam, 81 N. Y. 52; Wolf v. Kilpatrick, 101 id. 146.) This defendant, although he did not originally construct • the vault which on the ■evening in question was shown to be a nuisance, nevertheless is liable as one who “maintained” or “continued” it. (Irvine v. Wood, 51 N. Y. 224; Davenport v. Ruckman, 10 Bosw. 20; King v. Peddy, 1 Ad. & El. 822; Clark v. Fry, 8 Ohio St. 359; Bush v. Steinman, 1 B. & P. 404; Gandy v. Jubber, 5 B. & S. 78, 485; 9 id. 15; Dalay v. Savage, 145 Mass. 38; Sanford v. Clark, 59 L. T. Rep. [N. S.] 226.) If license from the city authorities can be inferred, no license ■at all events can reasonably be assumed but one which imposes the condition of protecting the public from injury. (Mairs v. M. R. E. Assn., 89 N. Y. 498.)</p> <p>The area was not a nuisance per se. (Jennings v. Van Schaick, 108 N. Y. 530; City of Chicago v. Robbins, 71 U. S. 657; Dygert v. Schenck, 23 Wend. 445; Bond v. Smith, 113 N. Y. 378; Congreve v. Morgan, 18 id. 84; Fisher v. Thirkell, 21 Mich. 1.) The ■evidence shows that the defendant is not liable. (Clancy v. Byrne, 56 N. Y. 129; Wenzlick v. McCotter, 87 id. 122; Wolf v. Kilpatrick, 101 id. 146; Ahern v. Steele, 115 id. 203.) Mr. Powers’ title extended only to the east line of State street, and he was not the owner of the area. (Harris v. Elliott, 10 Pet. 25; Jackson v. Hathaway, 15 Johns. 447; Tyler v. Hammond, 28 Mass. 193, 212; Woodhull v. Rosenthal, 61 N. Y. 382; Root v. Wadhams, 107 id. 394.) The duty of keeping this area safe and in repair rested upon the occupant and not upon the defendant. (Swords v. Edgar, 59 N. Y. 28, 33; Pretty v. Bickmore, L. R. [8 C. P.] 401; Kirby v. Boylston Market, 80 Mass. 249; City of Lowell v. Spaulding, 58 id. 277; Shipley v. Associates, 101 id. 251.) If this area properly cared for and repaired would not become a nuisance, the defendant is not liable. (Swords v. Edgar, 59 N. Y. 28.) If this area was originally a nuisance, having bought the property with the area existing upon it, the defendant is not responsible to the plaintiff, unless notice to him of the existence of the nuisance is shown. (C. S. Road v. B., N. Y. & E. R. R. Co., 51 N. Y. 573; Bond v. Smith, 44 Hun, 219; Haggerty v. Thompson, 45 id. 398; Nichols v. Boston, 98 Mass. 39.) The plaintiff’s, objections to the testimony received to the effect that such areas as this were common throughout the city, were properly overruled. (Raymond v. City of Lowell, 60 Mass. 524; Packard v. New Bedford. 91 id. 202.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 24,1890, which reversed a judgment in favor of the plaintiff entered upon a decision of the court on trial at Special Term, and granted a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This action is properly brought, since the defendant was not able to give the plaintiff the title to the premises in question free iron all encumbrance except the mortgages mentioned in the contract. (R. S. chap. 1, art. 2, § 55.) The will of the testator created a trust for the benefit of legatees, and the legal title to that portion of said premises which belonged to the testator was vested in Jonas Heller and Eosa Freedman. (2 R. S. chap. 1, art. 2, § 55; Tobias v. Ketchum, 32 N. Y. 319, 330; Ward v. Ward, 105 id. 68, 74; Robert v. Corning, 89 id. 225, 237; Morse v. Morse, 85 id. 59; Woodward v. James, 44 Hun, 98; Bradley v. Amidon, 10 Paige, 235; Vernon v. Vernon, 53 N. Y. 351; Miller v. Wright, 109 id. 194.) The provisions in this will create a trust in the lands of the testator on the separate and independent ground that the legacies are made a charge upon his land, and the trustees are authorized to sell or to receive the rents and profits for the purpose of satisfying the charge. (Fenwick v. Chapman, 9 Pet. 461; Peter v. Beverly, 10 id. 564; Newman v. Johnson, 1 Vern. 45; Kidney v. Cousmaker, 1 Ves. 440; Lupton v. Lupton, 2 Johns. Ch. 624; Hoyt v. Hoyt, 85 N. Y. 142; Taylor v. Dodd, 58 id. 335; MoCorn v. MoCorn, 100 id. 511; Brill v. Wright, 112 id. 129.) The trust created by the will is not affected by the fact that Jonas Heller, one of the trustees named, did not qualify as executor. Notwithstanding that omission, he was still trustee. (Judson v. Gibbons, 5 Wend. 224; Conklin v. Egerton, 21 id. 436, 437, 438; Dunning v. O. N. Bank, 61 N. Y. 497-501, 502; Thom v. Shiel, 15 Abb. [N. S.] 81, and note; Carroll v. Carroll, 16 id. 239; Dominick v. Michael, 4 Sand. 374; Conklin v. Egerton, 21 Wend. 430; Burritt v. Silliman, 13 N. Y. 93-96; 2 Washb. on Real Prop. [3rd ed.] 471.) The title to Solomon Freedman’s real estate being vested in him subject to a mortgage, under the foreclosure of which the defendant assumed to convey to the plaintiff, did not pass to the defendant, because there was a radical defect in the porceedings, on account of the fact that Jonas Heller was not made a party defendant therein. (Wilder v. Ranney, 95 N. Y. 7; Hall v. Nelson, 23 Barb. 88; Griswold v. Fowler, 6 Abb. Pr. 113; Brennan v. Wilson, 71 N. Y. 502.) . The legacies are a charge on the land in the nature of an inalienable trust. Accordingly, the fact of joining the legatees as defendants in the foreclosure action was wholly ineffectual to make the title, under the foreclosure, good. Owing to the emission to make Jonas Heller, trustee, a party, the court was without jurisdiction, and the proceedings were void. (Reid v. Marble, 10 Paige, 409; Loder v. Hatfield, 71 N. Y. 92; Brown v. Knapp, 79 id. 136; Leggett v. Perkins, 2 id. 297; Graff v. Bonnett, 31 id. 9, 19; Campbell v. Foster, 35 id. 361; Williams v. Thorn, 70 id. 270; Lent v. Howard, 89 id. 169, 181; Cutting v. Cutting, 86 id. 522, 546, 547; Cook v. Lowry, 95 id. 103, 111; Hutton v. Benkard, 92 id. 295; Genet v. Hunt, 113 id. 158, 168; U. S. T. Co. v. Roche, 116 id. 120.) Bosá Freedman, the other trustee, was not made a party defendant as trustee in the foreclosure suit. She was made a defendant individually and as executrix, but not as trustee, and consequently was in no situation to appear or take issue in such representative capacity, or to protect her right as trustee. (Landon v. Townshend, 112 N. Y. 96.) The sale of the fourth lot of the premises in question under the decree of said foreclosure suit, after more than sufficient had been realized to pay the amount due to the plaintiff and all expenses, was unauthorized by the judgment. (McBride v. Lewisohn, 17 Hun, 524-526; Mallory v. Clark, 20 How. Pr. 418.) There is no estoppel binding the legatees in this cause. (Bigelow on Est. 49; Galpin v. Page, 18 Wall. 350; Durant v. Abendroth, 97 N. Y. 132.) The opinion of the General Term, reversing the judgment for plaintiff at Special Term, is erroneous in its reasoning, and supplies no true ground for upholding the foreclosure. (Burritt v. Silliman, 13 N. Y. 93; Wilder v. Ranney, 95 id. 7; Brinckerhoff v. Wemple, 1 Wend. 470.) Under the contract of sale in this case the plaintiff was entitled to have the premises in question conveyed to him free from all incumbrances, except the mortgages set forth in the contract, and he was justified in refusing to take the title subject to the defects above enumerated. (Shriver v. Shriver, 86 N. Y. 586; Jordon v. Poillon, 77 id. 518; Fleming v. Burnham, 100 id. 1-9.) An action at law will be sustained to recover back the installment paid by plaintiff on a contract for the purchase of property, as in the case in question. (Moore v. Williams, 115 N. Y. 586.)</p> <p>The burden of proof was upon plaintiff. (Shriver v. Shriver, 86 N. Y. 585; Moser v. Cochrane, 107 id. 41; Ferry v. Sampson, 112 id. 415; Fleming v. Burnham, 100 id. 11; Spring v. Sanford, 7 Paige, 550; Schermerhorn v. Niblo, 2 Bosw. 161; Stapylton v. Scott, 16 Ves. 272; M. E. Church v. Thompson, 108 N. Y. 619; Baylis v. Stimson, 110 id. 621.) The questions of law claimed by the plaintiff to be doubtful questions affecting the title were not real questions, they were speculative and hypothetical, possessing no practical value. (Goebel v. Iffla 111 N. Y. 170, 177; Corcoran v. C. & O. C. Co., 94 U. S. 741; Jordan v. Van Epps, 85 N. Y. 427, 435; Cook, v. Platt, 98 id. 35; 1 R. S. 730, § 175; Leavitt v. Wolcott, 95 N. Y. 212; Clift v. Moses, 116 id. 144; Woerz v. Rademacher, 120 id. 62.) The affirmative was on the plaintiff to establish facts which raised doubtful questions of law, or disclosed outstanding vested rights hostile to the title. (Scholle v. Scholle, 113 N. Y. 261; Moser v. Cochrane, 107 id. 35; Hayes v. C. Co., 108 Mass. 400.) If Jonas Heller was not a necessary party to the foreclosure action, the title conveyed to the purchaser at the foreclosure sale by the referee was a good one. (Perry on Trusts, § 502.) The objections as to errors in the foreclosure proceedings are wholly without merit. (Bechstein v. Schultz, 45 Hun, 191; Everson v. Johnson, 22 id. 115; Andrews v. O’Mahoney, 112 N. Y. 568; DeForrest v. Farley, 62 id. 628; Wolcott v. Schenck, 23 How. Pr. 385; Abbott v. Connor, 98 N. Y. 665; Woodhull v. Little, 102 id. 165; Code Oiv. Pro. § 1632; 2 Edmund’s Stat. at Large, 200, § 158.)</p>

<p>An issue as to the existence of a license to use or manufacture a patented article is simply one as to the existence of a contract; it involves a question of title to property, as the exclusive privilege created by the issuing of a patent is property.</p> <p>An action, therefore, to determine whether a license has been given does not arise “ under the patent laws of the United States,” and is not within the jurisdiction of the federal courts, when all the parties are citizens of the same state; but is cognizable in a state court.</p> <p>Where a manufacturer has invented anew name and applied it to an article manufactured by him to distinguish it from those manufactured and sold by others, and the name thus adopted is not generic or descriptive of the article, its qualities, .ingredients, grade or characteristics, but is arbitrary or fanciful, he is entitled to be protected in the exclusive use of the name as a trade-mark.</p> <p>The use of the name by another manufacturer tends to deceive purchasers, and even if he had no actual intent to deceive, the courts are authorized, to interfere, both to protect the private right of the manufacturer who invented it and the public interests.</p> <p>The fact that a name so adopted indicates not only that the article is made by the manufacturer, but is an article patented by him, does not affect his exclusive right to use it as a trade-mark.</p> <p>In an action to restrain defendants from using the name “ Waterman’s Ideal Fountain Pen,” which plaintiffs claimed as a trade-mark, the trial court fund that plaintiff Waterman had, for a long time previous to the commencement of the action, been the manufacturer and inventor of an article known as a fountain pen, which was stamped and labeled with the name specified; this had been adopted by him as “his own proper device and trade-mark, and was known to the.public and to buyers and consumers.” It appeared also that the pens manufactured by plaintiffs were made under letters patent issued to Waterman, which described the invention as a “ fountain pen.” Defendants manufactured pen-holders, stamped them with the same name and offered them for sale. Both Waterman and defendants stamped upon the articles so made and sold by them the dates of the patents issued to Waterman. Held, the word “Ideal,” as used by Waterman, pointed out simply the maker, and so came within the definition of a trade-mark; that while the whole name pointed out both maker and inventor, this did not affect the right to the exclusive use of that word, and that plaintiffs were entitled to be protected in such use as applied to fountain pens.</p> <p>It appeared that W. assigned his letters patent; that S., the assignee, granted to him an exclusive license to manufacture and sell fountain penholders under said patents, the license requiring him to make returns and to pay royalties, as specified, to S., and upon failure to do this within a time specified, S. was authorized to terminate the license upon giving written notice to the licensee. Subsequently W. and S. gave to defendants their joint promissory note, and to secure payment thereof S. .assigned to them the letters patent, subject, however, to the license granted to W. Defendants transferred the note and their interest in the patents to S. The note was not paid at maturity, and thereafter S. .served notice of a revocation of the license on the ground of failure on the part of the licensee to make returns and payments as prescribed, .and then executed to defendants a sole and exclusive license to manufacture and sell fountain pens under the patents. The note was subsequently paid; between its maturity and payment defendants manufactured and sold penholders under the patents similar to and in imitation of those made by W., and stamped " Waterman’s Ideal Fountain Pen.” After the note was paid, they ceased to manufacture, but continued to .sell pens then on hand. It did not appear that plaintiffs manufactured anything covered by the patents during the period for which they made no returns. Held, that there was no effective revocation of W.’s license; that the one granted to defendants conferred upon them no right either to make or sell, and so no right to use the name; that while the relief plaintiffs might be entitled to on account of such manufacture by defendants was not involved in the action, as it related not to the use of the invention, but of the trade-mark, they were entitled to an injunction to restrain defendants from using the latter.</p>

On February 22, 1875, Mary E. Huson as principal, and William R. Baskin and James L. Brewer as sureties, made their joint and several promissory note, by which they promised to pay John T. Andrews and James Huntington, or bearer, $800, March 1, 1876, with interest. June 7,1876, the payees in the note recovered a judgment thereon against the principal and sureties for $854.33 damages and costs.

This action was brought by certain taxpayers of school district number two of the town of ¡Newtown, Queens county, against the defendants, as the trustees and the collector of said district, to restrain said trustees from issuing bonds for the erection of a new school-house in accordance with a resolution adopted at a district meeting, and to restrain said collector from collecting a tax already levied for the purpose of paying one year’s interest on such bonds.

The nature of the action and the facts, so far as material, are stated in the opinion. The denial of the motion for a nonsuit was error. The entire evidence has been incorporated in the case on appeal, and taken altogether it was insufficient to justify the submission of the cause to the jury, or to sustain the verdict.

This was an action to recover damages accruing for the maintenance of an elevated railroad in front of plaintiff’s premises in the city of Hew York, and to restrain its future maintenance and operation. The facts, so far as material, are stated in the opinion. It was error to find that plaintiff was seized of an estate of inheritance in fee simple absolute in the premises involved in this suit.

The plaintiffs were the owners and consignees of a quantity of rags imported from Hiogo, Japan, in ship Vigilant, which arrived at the port of New York, May 30,1885, and imported from Leghorn, Italy, in bark Battaglia, which arrived at same port June 6, 1885.

This was an action to recover damages for a breach of contract. The facts are sufficiently stated in the opinion. The plaintiff’s letter of August twelfth was a positive refusal on his part to perform the contract, and in view of that refusal the defendants not only had the right, but it was their duty to take such steps as were necessary to find other employment for their Academy of Music on the dates named and thus avoid loss.

<p>An elevated railroad erected in a city street, the right to construct and operate which has not been obtained by purchase from the abutting owners, or by proceedings to condemn, is, as to them, an illegal structure, and a continuing trespass upon their rights, from the time it was built.</p> <p>Such a,trespass is an injury to the inheritance, and a person seized of an estate in remainder in premises abutting upon the street, may maintain an action for an injunction against the railroad company, “founded upon an injury done-to the inheritance, notwithstanding an intervening estate for life.” (Code Civ. Pro. §§ 1665, 1681.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The respondent was a trustee at the time default was made in filing the annual report of the company. (Read v. Keese, 60 N. Y. 616; Deming v. Buleston, 55 N. Y. 655.) The trustees of the company had not been in any way relieved or excused from filing an annual report as required by law.

<p>Appeal by the defendant Brown from order of the General Term of the Supreme Court in the first judicial department, made February 3, 1890, which reversed a judgment in his favor entered upon the report.of a referee and granted a new trial. Also appeal by the plaintiff from judgment of the same General Term, entered upon the same order, which modified and affirmed as modified a judgment in favor of the defendants Seligman entered upon the report of a referee.</p> <p>This action was brought to recover damages for the alleged breach of a contract, of which the following is a copy, to wit:</p> <p>“ Oliver W. Barnes having by instruments bearing even date herewith, assigned and transferred to us, George H. Brown and Joseph Seligman, all claims and demands against the Bew York City Central Underground Bailway Company, and his title to certain subscriptions to the capital stock of said company, and also any interest he may have in a certain alleged contract made -with the said company by Francis P. Byrne, and having also transferred sixty shares of stock in said company. Bow, we, George H. Brown and Joseph Seligman, do hereby, in consideration of the premises and of one dollar to us paid by the said Oliver W. Barnes, agree that we will, upon certain amendments to the charter of -the said Bew York City Central Underground Bailway Company, now pending before the legislature of the state of Bew York, becoming a law, pay or cause to be paid to the said Oliver W. Barnes, his representatives and assigns, the sum of twenty-seven thousand five hundred dollars in currency of the United States, being the amount of certain advances made and services rendered by the said Barnes to the said railway company. And also that we will cause to be delivered to the said Barnes, or his assigns, at the time of the payment of the said money, two thousand shares of the capital stock of the said railway company, which said stock is to be full paid stock.</p> <p>“ And we further agree with the said Oliver W. Barnes, his representatives and assigns, that in the event of the said amendments not becoming a law at the present session of the legislature, Ave Avill either cause said money to be paid and said two thousand shares of stock delivered to the said Barnes, or his assigns, or have reassigned to the said Barnes, or his assigns, the claims, demands and rights so assigned to us, and transfer to him or his assigns the said sixty shares of stock so transferred to us the next day after the close of the present session of the legislature of Bew York. And we further agree that not more than one hundred additional shares of the stock of said company shall be issued until the said payment he made and stock delivered Avithout the consent of the said Barnes, and that so much of said one hundred shares as shall be issued shall be transferred to the said Barnes, if we do not exercise our option of paying said twenty-seven thousand five hundred dollars, and delivering said two thousand shares on the failure of the said amendments to become a law at the present session. And we further agree that no contract for the construction of the railway of the company shall be entered into without the consent of the said Barnes, until the said money shall be paid and the stock delivered.</p> <p>“ In witness whereof, we have hereunto set our hands and seals, this twenty-sixth day of March, in the year one thousand eight hundred and seventy-two.</p> <p>“ GEORGE H. BROWE. [l. s.]</p> <p>“ JOSEPH SELIGMAE.' [l. s.] ”</p> <p>When in 1882 this action was commenced, Joseph Seligman had died, and executors of his will were joined as defendants with Brown. The alleged default was in the failure or refusal to deliver to the plaintiff the two thousand shares of the stock of the railway company, as Brown and Seligman had undertaken by the contract. The plaintiff sought to recover $200,000 and interest. The referee found that the stock had no value, and directed judgment against Brown for nominal or six cents damages; and as to the defendants, executors, the referee directed judgment of dismissal of complaint. Judgments were entered accordingly. The General Term affirmed the latter, and reversed the judgment for nominal damages, and as to the defendant Brown granted a new trial.</p> <p>Further facts appear in the opinion.</p> <p>Plaintiff cannot complain of error in the rulings of the referee. (Parsons v. Sutton, 66 N. Y. 92, 96; Gumb v. T. T. S. R. Co., 114 id. 411; Uransky v. D. D., E. B. & B. R. R. Co., 118 id. 304; Uertz v. S. M. Co., 35 Hun, 116; Saffer v. D. D., E. B. & B. R. R. Co., 24 N. Y. S. R. 210; Code Civ. Pro. § 1338; Ward v. Craig, 87 N. Y. 550; R. L. R. Co. v. Roach, 97 id. 378; Inglehart v. T. I. H. Co., 109 id. 454; Clemons v. Davis, 4 Hun, 260; Coster v. City of Albany, 43 N. Y. 399, 402-404; Van Colt v. Van Brunt, 82 id. 535; Gamble v. Q. C. W. Co., 123 id. 91; Clark v. Bever, 139 U. S. 96.) If it be assumed that the plaintiff may demand as damages the cost of procuring the 2,000 shares, .and that such cost would be $200,000, there is no rule or principle known to the law which supports his claim for that amount, or entitles him to anything more than that which his complaint demanded, the value of the stock. (Ormsby v. V. C. M. Co., 56 N. Y. 623; Tyng v. C. W. Co. 58 id. 308, 314; M. & T. Bank v. F. & M. Bank, 60 id. 40, 50; Whelan v. Lynch, 60 id. 469, 472; Prince v. Connor, 69 id. 608; Wehle V. Haviland, Id. 448; Thayer v. Manley, 73 id. 305, 308; Gruman v. Smith, 81 id. 25; Colt v. Owens, 90 id. 368; Wright v. Bank, 110 id. 237; 1 Sedg. on Dam. [8th ed.] §§ 243, 244, 257; Gruman v. Smith, 81 N. Y. 25; Dwyer v. Rich, 1 Metc. 180; Porter v. B. B. R. R. Co., 32 Me. 539; Fosdick v. Green, 27 Ohio St. 484; Murray v. Stanton, 99 Mass. 345; Pom. on Spec. Perf. § 12; Cushman v. T. M. J. Co., 76 N. Y. 365; Pom. Eq. Juris. § 1401; Conger v. N. Y., W. S. & B. R. R. Co., 120 N. Y. 29; Chellis v. Chapman, 125 id. 214.) If the plaintiff had paid $200,000 to the company, and thus obtained the 2,000 shares of full paid stock, neither would it have changed the rule of damage, nor on any theory or rule recognized by the courts have entitled him to recover the sum paid. (Baker v. Drake, 53 N. Y. 211; Wright v. Bank of Metropolis, 110 id. 237; Loker v. Damon, 17 Pick. 284; Hogle v. N. Y. C. & H. R. R. R. Co., 28 Hun, 363.) The complaint states no cause of action against the executors of Joseph Seligman, inasmuch as it contains no allegation of inability to procure satisfaction from the co-defendant Brown. (2 Chitty on Cont. 1353; 1 Pars, on Cont. 11, 12, 30; Getty v. Binsse, 49 N. Y. 385; Lane v. Doty, 4 Barb. 530; Pom. Eq. Juris. § 409; Voorhis v. Child, 17 N. Y. 354; Richter v. Poppenhausen, 42 id. 373; Hoyt v. Bonnett, 50 id. 538; Pope v. Cole, 55 id. 124; Hauck v. Craighead, 67 id. 432; Smith v. Ballantine, 10 Paige, 101; Voorhis v. Baxter, 1 Abb. Pr. 13; Lyon v. Park, 111 N. Y. 350; Jarvis v. Jarvis, 3 Edw. Ch. 462; Dash v. Van Kleeck, 7 Johns. 477; Sackett v. Andross, 5 Hill, 327, 334; Trist v. Cabenas, 18 Abb. Pr. 143, 146; People v. Marshall, 7 Abb. [N. C.] 380, 382; Sanford v. Bennett, 24 N. Y. 20, 23; People v. Supervisors, 43 id. 130, 135; Benton v. Wickwire, 54 id. 226; N. Y. & O. M. R. R. Co. v. Van Horn, 57 id. 477, 478; McMaster v. State, 103 id. 547, 554; Johnson v. Burrell, 2 Hill, 238; Calkins v. Calkins, 3 Barb. 305; McMannis v. Butler, 49 Barb. 176; Sayre v. Wisner, 8 Wend. 661; Stone v. Flower, 47 N. Y. 566; Goillotel v. Mayor, etc., 87 id. 441; Bradley v. Burwell, 3 Den. 61; Cornes v. Wilkin, 14 Hun, 428; Johnson v. Harvey, 84 N. Y. 363; Bronson v. Kinzie, 1 How. Pr. 311, 316; Brine v. Ins. Co., 96 U. S. 627; Story on Const. § 1385.) Plaintiff’s motion to amend the complaint was properly denied. (Hendricks v. Decker, 35 Barb. 302; Ross v. Schloss, 6 id. 308; Guiterman v. Steamship Co., 9 Daly, 124; v. Burras, 13 Abb. [N. C.] 388; Robbins v. Richardson, 2 Bosw. 248; B. F. Co. v. Allen, 12 Civ. Pro. Rep. 71; King v. Barnes, 107 N. Y. 645; Smith v. Rathburn, 75 id. 122; Bennett v. Lake, 47 id. 93; Gambling v. Haight, 58 id. 623; Lane v. Doty, 4 Barb. 530; Brown v. Babcock, 3 How. Pr. 305; Morehouse v. Ballou, 16 Barb. 289; Union Bank v. Mott, 27 N. Y. 633.)</p> <p>Plaintiff was entitled to recover only nominal damages against the defendant Brown. (Sedg. on Dam. 200; McKnight v. Dunlop, 5 N. Y. 537; Pollen v. LeRoy, 30 id. 549; Wilson v. Martin, 1 Den. 601; Dana v. Fiedler, 12 N. Y. 40; Fosdick v. Green, 27 Ohio, 484; Robinson v. Noble, 8 Pet. 181; Conaughty v. S. C. Bank, 93 N. Y. 401; Quinn v. Van Pelt, 56 id. 417; Thayer v. Manley, 73 id. 305; 56 id. 417; Hamilton v. McPherson, 28 id. 76; Hecksher v. McRue, 24 Wend. 304; Clark v. Masiglia, 1 Den. 317; Dillon v. Anderson, 43 N. Y. 231; Howard v. Daly, 61 id. 362; Polk v. Daly, 14 Abb. [N. S.] 156; Parsons v. Sutton, 66 N. Y. 92; 4 Daly, 258.) The testimony offered by the defendants as to the value of the underground company stock was proper. (Scattergood v. Wood, 79 N. Y. 263; Hollender v. N. Y. C. Co., 19 Abb. [N. C.] 20.)</p> <p>The learned referee erred in the measure of damages. (Baker v. Drake, 53 N. Y. 211, 220-223; Thayer v. Manley, 73 id. 307, 308; Wright v. Bank, 110 id. 237, 246; West v. Wentworth, 3 Cow. 82; Clark v. Pinney, 7 id. 396; Kortwright v. C. Bank, 20 Wend. 91; 22 id. 348; Arnold v. S. Bank, 25 Barb. 424; Van Allen v. I. C. R. R. Co., 7 Bosw. 515, 537; 4 Abb. Ct. App. Dec. 443; Colt v. Owens, 90 N. Y. 368; M. & T. Bank v. F. & M. Bank, 60 id. 40, 50; Whelan v. Lynch, Id. 469, 472; Prince v. Connor, 69 id. 608; Wehle v. Haviland, Id. 438; Gruman v. Smith, 81 id. 25; Nash v. Towne, 5 Wall. 689, 699; Knapp v. Warner, 57 N. Y. 688; Clark v. Ins. Co., 64 id. 33, 38, 39; Bates v. C. V., etc., R. R. Co., 3 T. & C. 16; 59 N. Y. 641; Pinney v. Gleason, 5 Wend. 393; Gilbert v. Danforth, 6 N. Y. 585; Fletcher v. Derrickson, 3 Bosw. 181, 188; Stephens v. Howe, 2 J. & S. 133; Murray v. Hamson, 47 Barb. 492, 493; Puesey v. N. J., etc., R. R. Co., 114 Abb. [N. S.] 434; Wakeman v. W. & W. M. Co., 101 N. Y. 205.) The referee decided that, as Brown and Seligman were joint contractors, a joint action against the survivor and the executors of the deceased would not lie, without an allegation in the complaint, supported by proof on the trial, of the insolvency of the survivor, and of the plaintiff’s inability to collect his claim from him. Accordingly he held that as to these executors the complaint should be dismissed. This was error. (Quackenboss v. Lansing, 6 Johns. 49; Ernst v. Bartle, 1 Johns. Cas. 319; Sandford v. Halsey, 2 Den. 264; Thorpe v. Jackson, 2 Y. & C. 553; De Agreda v. Mantel, 1 Abb. Pr. 139.) The objection that a cause of action against these executors was improperly joined with a cause of action against the surviving vendee, appeared upon the face of the complaint and should have been taken by demurrer. (Code Civ. Pro. §§ 447, 452, 488, 499; Sullivan v. R. R. Co., 119 N. Y. 348; Hilck v. Reinheimer, 105 id. 473; Barnard v. Onderdonk, 98 id. 158; Barker v. Cocks, 50 id. 689.) The decision of a referee, denying leave to amend, will be reviewed and reversed when general justice will be promoted and future litigation prevented thereby. (Coates v. Donnell, 16 J. & S. 46, 69; Beck v. Allison, 56 N. Y. 366; Stahl v. Stahl, 2 Lans. 60; Yorks v. Peck, 14 Barb. 644; Van Riper v. Poppenhausen, 43 N. Y. 68; Bank v. Morgan, 6 Hun, 346; 73 N. Y. 593.) Hr. Seligman did not die until after the Code of Civil Procedure took effect. If this action had been brought against him and Brown before his death, it is clear that the court, under §§ 758, 452, could have revived it against his executors, and brought them in as co-defendants with Brown after his death. This, being so, the action can be brought, after his death, against his executors as co-defendants with Brown in the first instance. The right, in each case, depends upon exactly the same principle, not upon the circumstances whether the death occurred before or after the commencement of the action. (In re Trustees, etc., 31 N. Y. 574, 585; Morse v. Gould, 11 id. 281; Van Rensselaer v. Snyder, 13 id. 299; Van Rensselaer v. Ball, 19 id. 100; De Agreda v. Mantel, 1 Abb. Pr. 138; Voorhis v. Child, 17 N. Y. 354; Master v. Blackwell, 8 Hun, 313; Randall v. Sackett, 77 N. Y. 480; Stocking v. Hunt, 3 Den. 274.)</p>

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

The nature of the action and the material facts are stated in the opinion. The plaintiff, as a taxpayer of the city of Rochester, was entitled to the relief prayed for. (Osterhoudt v. Rigney, 98 N. Y. 222; Talcott v. City of Buffalo, 34 N. Y. S. R. 873, 874, 875; People ex rel. v. Village of Little Falls, 8 N. Y. Supp. 512; Laws of 1887, chap. 673; Ayers v. Lawrence, 59 N. Y. 192; Code Civ.

This action was brought to recover back moneys paid upon alleged illegal assessments for a street improvement. May 30, 1865, the common council of the city of Rochester;, pursuant to chapter 143 of the Laws of 1861, the city charter, confirmed an assessment of §30,830, for curbing and paving Oak street, between Allen and Lisle streets, the sum being assessed upon property benefited by the improvement.

This was an action of ejectment brought to recover the possession of eight lots of land situate in the village of West Flushing, county of Queens, of the value of .$2,000. The defendant Joseph Hart, individually, owned the premises in question on the 6th of July, 1878, when he filed a petition, in bankruptcy and included said lands in his schedule of assets.

The nature of the action and the facts, so far as material, are stated in the opinion. In order to recover, plaintiff must show some consideration for defendant’s signature of the note. (Good v. Martin, 95 U. S. 90; Green v. Shepherd, 87 Mass. 589; Daniels on Neg. Inst. § 1760; Rand. on Comcl.

This action was brought by the plaintiffs, as general creditors of the defendant Josephine M. Soussman, to set aside three judgments confessed by her in favor of certain of the other defendants, together with the executions issued thereon and levies made thereunder, as in violation of the statute restricting preferences in general assignments for the benefit of creditors.

Gross-appeals from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made March 5, 1890, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. There was no breach of a contract made with plaintiff: individually.

The nature of the action and the facts, so far as material, are stated in the opinion. If any valid trust was created, it was created by the plaintiff. (3 R. S. 2189, § 75.) The deed from the plaintiff to the defendant Gibbons, and the declaration of trust by the latter should be set aside and canceled, and the said defendant be directed to reconvey the property to the plaintiff.

' Appeal from judgment entered upon the order of the general! term of the supreme court in the second judicial department, affirming judgment of the court, of sessions of the county of Suffolk.

This action was brought to restrain the defendant from obstructing an alley-way, over which the plaintiff claimed a right to pass in order to reach his stable. In 1852, one Davis owned a parcel of land on the corner of Fifth avenue and Thirty-first street in the city of Hew York, with a frontage of about 112 feet on the former and 150 feet on the latter.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 26,1889, which affirmed a judgment in favor of plaintiffs entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The return of the gloves under the letters and bills accompanying them after the return and objections of October sixth, and the plaintiffs’ admissions of October twenty-second in reply and plaintiffs’ acceptance and retention of the gloves under those letters and bills are a complete defense to all of plaintiffs’ claim that is disputed. (Dent v. N. A. S. S. Co., 49 N. Y. 390; Norton v. Dreyfuss, 108 id. 90.) The severable lot of ladies’ gloves not complying with the contract never having been, in point of fact, accepted by defendants, and so the title to them never having passed, the return was of itself a complete defense (even independently both of the letters and bills accompanying the returns, and of the acceptance of the returns under those letters and bills). (Hatch v. O. Co., 100 U. S. 124; Terry v. Wheeler, 25 N. Y. 520; Pierson v. Crooks, 115 id. 539; Gurney v. A. & G. W. R. Co., 58 id. 358.) The defective character of the gloves, their return for non-compliance with the contract and tlieir acceptance back by plaintiffs constitute a complete defense as to the gloves in controversy. (Norton v. Dreyfuss, 106 N. Y. 90.) If, however, there could be any doubt on the point that defendants were not liable for the gloves that had been sent them by “ mistake,” and that they had returned, then the case should have gone to the jury on the intentions of the parties as requested by the defendant’s counsel. (Norton v. Dreyfuss, 106 N. Y. 90; Gurney v. A. & G. W. Co., 58 id. 358; Gautier v. D. M. Co., 13 Hun, 524; Powell v. Powell, 71 N. Y. 71; Nat. Bank v. Dana, 79 id. 112.) If a party moves for a nonsuit or for a verdict in his favor, and his motion is denied, he has the right to request the court to submit the facts of the case to the jury, and he stands in the same position, so far as a review of the denial of his request to the jury is concerned, as he would if no motion for a nonsuit or verdict in his favor had been made. (Koehler v. Adler, 78 N. Y. 287.) The evidence as to custom should have been retained. (Newhall v. Appleton, 114 N. Y. 140; Clarke v. Baker, 11 Metc. 186; 1 Smith’s L. C. 418.)</p> <p>Hpon the delivery to and receipt by the defendants of the gloves ordered the title to them vested in the defendants subject only to the right of the defendants to rescind the contract in case the gloves were found not to conform to the order. (Reed v. Randall, 29 N. Y. 358; C. I. Co. v. Pope, 108 id. 232; G. M. Co. v. Allen, 53 id. 515; Hargous v. Stone, 5 id. 73; McCormick v. Sarson, 45 id. 265; Brown v. Foster, 108 id. 387; Beck v. Sheldon, 48 id. 365, 373.) A new and independent contract was made which was fully performed by the plaintiffs. Ho action could be maintained upon it by the defendants, ■even if it had been ¡headed. (Blanchard v. Trimm, 38 N. Y. 225, 228; Dent v. N. A. S. Co., 49 id. 390.) But if that contract be not regarded as an independent one, but as a mere modification of the original contract of sale, so as to allow the defendants to return the defective goods, and the plaintiffs to deliver in place thereof perfect ones, the same result follows ; and the defendants having returned defective goods, are bound to accept and receive perfect goods sent to them in place thereof by the plaintiffs. They cannot accept the benefits of the proposition and reject its burdens. (Cassidy v. Lefevre, 45 N. Y. 565; Brown v. Foster, 108 id. 387.) The court did not err in striking out the testimony of witness Shenehon in relation to custom in Kansas City. (Higgins v. Moore, 34 N. Y. 417; Barnard v. Kellogg, 10 Wall. 383; C. E. Bank v. N. Bank, 91 N. Y. 74; S. Bank v. N. Bnnk, 67 id. 458; Bierne v. Dord, 5 id. 95; Thompson v. Ashton, 14 Johns. 316; Frith v. Barker, 1 id. 327; Harris v. Tunbridge, 83 N. Y. 92.) The court did not err in permitting the plaintiffs to prove by witness Shenehon that the defendants had purchased similar gloves of Wertheimer & Co., and for a less price. (D. S. B. Co. v. Gardner, 101 N. Y. 387; City of Brooklyn v. B. C. R. R. Co., 47 id. 475.) The court did not err in denying the defendants’ request, to go to the jury, generally as to the intention of the parties. (Dent v. N. A. S. Co., 49 N. Y. 390.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made March 25, 1890, which directed a final judgment dismissing the complaint, and reversed an interlocutory judgment in favor of the plaintiff entered upon an order of the Special Term overruling defendant’s demurrer to the complaint.</p> <p>This was an action to determine conflicting claims to the interest of the purchaser in a contract for the purchase and sale of lands and for a specific performance.</p> <p>On January 5, 1875, Maximilian Hammond Dalison and Alfred Markby, as trustees, under the will of Eichard Thomas Pulteney Pulteney, were seized of certain lands and premises situate in the town of Avoca, Steuben county, U. Y., and on that day entered into a contract with Abigal McConnell, for the sale thereof to him. Thereafter sundry payments were made upon said contract by him.</p> <p>On March 17,1886, an action was commenced in this court by the plaintiff against said Abigal McConnell and one Dexter McConnell, defendants, to recover upon their three promissory notes given for merchandise, and on March 18,1886, upon the application of plaintiff, a warrant of attachment was duly granted in said action, against the property of said defendant, Abigal McConnell, and delivered to the sheriff of the county of Steuben.</p> <p>On the 19th day of March, 1886, pursuant to the said attachment, and the statute and practice in such case made and provided, all of the right, title and interest of the said defendant, Abigal McConnell, in said contract and lands was duly attached and notice thereof on' that day duly filed and recorded in Steuben county clerk’s office according to law.</p> <p>On September 27, 1887, plaintiff recovered a judgment in said action against the said defendant, Abigal McConnell, and on October 5, 1887, an execution upon the said judgment was duly issued and delivered to said sheriff who, in pursuance of the said execution, duly advertised to be sold all the right, title and interest which the said defendant, Abigal McConnell, had in said contract and in said lands under said contract, on the 19th day of March, 1886, the time when the same was attached as hereinbefore set forth, and the said right, title and interest of said Abigal McConnell, in or under said contract, was on the 19th day of ¡November, 1887, pursuant to said advertisement, sold at • public sale, and the same was struck off to the plaintiff who was the highest bidder therefor, and on the same day, said sheriff executed and delivered to this plaintiff, a certificate of such sale.</p> <p>Some time after the 19th day of March, 1886, said Abigal McConnell executed and delivered to the defendant Linderman an instrument in writing purporting to assign to him the said contract, or her interest therein, and said Linderman now claims some right or interest in said contract under said alleged assignment.</p> <p>Said assignment was made and intended by the parties thereto as security for an alleged pre-existing indebtedness of said Abigal McConnell.</p> <p>Said Abigal McConnell is in possession of said premises, and withholds possession of the same from the plaintiff.</p> <p>Before the commencement of this action the plaintiff offered to j>av to said trustees the amount unpaid upon said contract, and requested them to convey said premises to plaintiff, but said trustees have refused and still refuse to convey unless and until the conflicting rights of the parties in respect to said lands and contract shall be determined in an action in equity for that purpose, and the plaintiff, therefore, brought this action.</p> <p>By levying the attachment, plaintiff acquired a lien upon defendant’s interest in the land held under contract, and such interest was properly sold thereunder. (Code Civ. Pro. §§ 645, 656, 1253, 1274; Gerard on Titles [2d ed.], 712; Lee v. Hunter, 1 Paige, 519; Wright v. Douglass, 2 N. Y. 376; Watson on Sheriffs, 208; White v. Butler, 29 Mich. 129; Page v. Rogers, 31 Cal. 293; Slater’s Appeal, 29 Penn. St. 169; R. P. Co. v. Dougherty, 81 N. Y. 481; Jackson v. Scott, 18 Johns. 94; Jackson v. Walker, 4 Wend. 463; Lynch v. Crary, 52 N. Y. 84; Thurber v. Blanck, 50 id. 84; Pom. Eq. Juris. §§ 1410,1411,1412.) The objection that the McConnell contract was not within the meaning of section 645, because of the clause prohibiting its assignment without consent of the vendors, has no force. (Gerard on Titles [2d ed.], 137, 138; Overbagh v. Patrie, 8 Barb. 28; 6 N. Y. 510.)</p> <p>The alleged sale of defendant’s interest in the land contract was an absolute nullity, because such a sale upon execution is expressly prohibited by the Code. (Code Civ. Pro. §§ 644, 1253; 1 R. S. 744, § 4; Sage v. Cartwright, 9 N. Y. 49; Hotailing v. Hotailing, 47 Barb. 63.) The equitable interest of the defendant McConnell was not the subject of levy under the attachment. (T. G. C. Co. v. Smith, 110 N. Y. 83; McCauley v. Smith, 32 N. Y. S. R. 745; Kneeland on Attach. §§ 324, 325-328; Disborough v. Outcalt, 1 Saxt. 298; Anthony v. Wood, 96 N. Y. 180; Manchester v. Tibbetts, 121 id. 219; Hawley v. James, 5 Paige, 318; Powers v. Ingraham, 3 Barb. 576; Tibbs v. Morris, 44 id. 138; Stone v. Sprague, 24 N. Y. 509; Lee v. Hunter, 1 Paige, 536.) Assuming that the plaintiff had an attachable interest in the land, then the complaint fails to state a cause of action, unless it should be held that the sheriff’s sale of this equitable interest was of some force. (Code Civ. Pro. § 1874; Bowe v. Arnold, 31 Hun, 256; Thurber v. Blanch, 50 N. Y. 80-86; Anthony v. Wood, 96 id. 160; Adee v. Bigler, 81 id. 349; Geary v. Geary, 63 id. 352; Adsit v. Butler, 87 id. 585.) It is submitted that the complaint is defective also in not stating facts showing that the warrant of attachment was duly granted. (Code Civ. Pro. § 532.) There being no answer interposed by the respondent, the appellant cannot claim that the complaint authorizes any judgment different from his prayer for relief. (Evans v. Burton, 5 N. Y. S. R. 216; Stevens v. Mayor, etc., 84 N. Y. 296; Kelly v. Downing, 42 id. 71.)</p>

This was an action upon a policy of insurance issued by the defendant to plaintiff upon his barn and contents.

The plaintiff, a married woman, brought this action to recover from the defendant, a charitable corporation, the damages that she claims to have sustained through its alleged negligence in maintaining a broken cover over a coal-hole in a public sidewalk, which caused her to fall and break her arm. The pleadings presented the usual issue as to the negligence of each party, and the jury rendered a verdict in favor of the plaintiff for five hundred dollars.

This action was brought upon an award of commissioners of appraisal, appointed on application of defendant to appraise lands of John B. Lent, to be taken by defendant for railroad purposes. The complaint alleges the incorporation of the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in instructing the jury to exclude the element of noise from their consideration in assessing the damage. (Kane v. M. R. Co., 125 N. Y. 164; Jones v. M. E. R. Co., 39 N. Y. S. R. 177; Bruen v. M. R. Co., Id. 86; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 278; Pearce v. Langfit, 101 Penn.

This action was brought by plaintiff, the former master of the bark “ Commerce,” to recover $449.

<p>The mere failure of a fire insurance company to respond to an application for insurance does not raise an inference that it has accepted it and insured the risk.</p> <p>To bind the company there must be actual acceptance.</p> <p>Silence operates as an assent and creates an estoppel only where it has the eSect to mislead.</p> <p>In an action upon an alleged paroi contract of insurance it appeared that S., the general agent of defendant, sent blank applications to IT., with instructions that in case he secured business for defendant to fill out an application and forward to him (S.). IT., on May twelfth, as a result of negotiations with plaintiffs, filled out an application and forwarded it to S. Plaintiffs were informed by IT. that he could not issue a policy, and before one could be issued the application would have to be approved by some other person. S., on receiving the application, wrote to IT. that the risk being special he did not wish to write it without submitting it to the company. On the same day S. wrote defendant, stating the application and the nature of the risk. Defendant, on receipt, immediately replied rejecting the application. Of this action S. neglected to notify plaintiffs or IT. Plaintiffs, on May thirtieth, sent a check to IT. for the premium agreed upon, which the latter received, but did not remit to S. or defendant, and it did not appear they had any knowledge of the payment. A day or two thereafter IT. told plaintiffs that he had heard nothing from the company, and consequently it was all right, and they would get the policy in a day or two. The property was destroyed by fire on June sixth. Held, that defendant was not liable ; that IT. having to plaintiffs’ knowledge no authority to contract, could not bind defendant by acceptance of the premium or by his conclusion drawn from its failure to report its action upon the application.</p>

This action is in equity to compel the defendant to remove a portion of a brick store erected upon his land in the village •of Cortland, which plaintiff claims encroaches upon a right .of way which she uses jointly with the defendant. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Ho proof of loss, as required by the terms and conditions of the policy, was ever made or furnished to the company. (Grosvenor v. A. Ins. Co., 17 N. Y. 391; Cornell v. Le Roy, 9 Wend. 163; Barnes v. U. Ins. Co., 45 N. H. 21; W. F. Ins. Co. v. G. & B. S. M. Co., 45 Mich. 131; Graham v. P. Ins. Co., 77 N. Y. 177; Heilman v. W. Ins. Co., 75 id. 12; Perry v. L. Ins.

This action was brought in the County Court of Richmond county for the foreclosure of a mechanic’s lien.

<p>Appeal by Vietor and Achilles from a judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 26, 1889, which affirmed a judgment in favor of defendant Bulger entered upon the report of a referee.</p> <p>The nature of the action and the facts, so far as material are stated in the opinion.</p> <p>Upon the facts found by the referee and upon uncontradicted evidence, the assignment was fraudulent and void. (Laws of 1877, chap. 406, § 1; Hardman v. Bowen, 39 N. Y. 196; Britton v. Lorenz, 45 id. 51; Frazer v. Truax, 27 Hun, 587; In re Lewis, 81 N. Y. 421; Ogden v. Peters, 21 id. 23; Jessup v. Hulse, Id. 168; In re Dewey, 10 Daly, 66; Cunningham v. Cunningham, 1 Ves. 522; Lewin on Trusts, 118; Laws of 1877, chap» 466. § 3; Chapin v. Thompson, 89 N. Y. 279.) The theory on which tire referee reconstructed the assignment has no precedent in law or reason. (Knight v. Bunn, 7 Iredell, Eq. 77; Leavitt v. Palmer, 3 N. Y. 19; Grover v. Wakeman, 11 Wend. 187; Mackie v. Cairnes, 5 Cow. 547.) The construction adopted by the referee apparently is that the debt due Major, no matter how represented, was, when finally ascertained, the debt preferred, and in that he erred. (Griffin v. Marquadt, 21 N. Y. 123; Platt v. Lott, 16 id. 478; In re Lewis, 81 id. 424; Holmes v. Hubbard, 60 id. 185.)</p> <p>The assignment is void on its face, in that it gives a preference to “ L. Cohn, agent, or individually,” and thereby fails to specify the creditor intended to be preferred. (Frazer v. Truax, 27 Hun, 584; Chapin v. Thompson, 89 N. Y. 280; In re Lewis, 81 id. 424.) The preference to Adelia J. Sparks is fraudulent and void as against the creditors of Buckley ■ & Co., the assignors. (109 N. Y. 333; Pars, on Part. [2d ed.] 438, 447; Durant v. Pierson, 58 Hun, 190; 124 N. Y. 444;, Nordlinger v. Anderson, 123 id. 544; Bernheimer v. Rindskopf, 116 id. 428; Loos v. Wilkinson, 110 id. 195, 209; Starin v. Kelly, 88 id. 118; Talcott v. Hess, 31 Hun, 282; Wilson v. Robertson, 21 N. Y. 587; Menagh v. Whitwell, 52 id. 165; Bulger v. Rosa, 119 id. 465; Bump on Fraud. Conv. [3d ed.] §§ 271, 272, 314-324.) The preference to Chloe Spencer-renders the assignment fraudulent and void. (Newman v. Cordell, 43 Barb. 448; Bishop on Insol. Debt. [2d ed.] 217; Loos v. Wilkinson, 110 N. Y. 195, 209; Starin v. Kelly, 88 id. 418; Bump on Fraud. Conv. § 280; Menagh v. Whitwell, 52 N. Y. 152.) The fact as found by the referee that the •assignors have stated “ they had a surplus of $40,000, and that no losses have been shown to have accrued to Buckley & Go. to wipe out such surplus between the date of such statement ” and the making of the assignment, is sufficient to show a fraudulent disposition of property on the part of the assignors. (Whart. on Ev. § 1289; Waite on Fraud. Conv. §§ 6, 7, 224; Bump on Fraud. Oonv. §§ 38, 39, 50, 51, 54, 81, 83; Bonnell v. Griswold, 89 N. Y. 122; Bennet v. Bates, 94 id. 354, 367; Health Dept. v. Purdon, 99 id. 237, 243; Mackie v. Cairnes, 5 Cow. 547; D’Ivernois v. Leavitt, 23 Barb. 64.) Preferential assignments, though tolerated, are regarded with extreme disfavor. (Sutherland v. Bradner, 39 Hun, 134; 116 N. Y. 410; Mills v. Parkhurst, 124 id. 89; Burrill on Assign. §§ 255,256, 263,264; Barnum v. Hempstead, 7 Paige, 568, 572; Brainerd v. Dunning, 20 N. Y. 214; Brown v. Guthrie, 39 Hun, 31; Frazer v. Truax, 27 id. 587; Chapin v. Thompson, 89 N. Y. 270; Pratt v. Allen, 7 Paige, 627; Bank of Rochester v. Emerson, 10 id. 359; Burchard v. Phillips, 11 id. 66.) To affirm the action of the referee with respect to such substitution ■of items in an assignment, would make the most glaring frauds •easy of accomplishment. (Salisbury v. Howe, 87 N. Y. 134.) The preferences in the assignment to Daniel Gr. Major of the items of “ October 4, 1883, $500; ” “ February 1, 1884, $1,000,” and of “ February 10, 1884, $3,000,” are fraudulent. (N. Bank v. Ingraham, 58 Barb. 290; Wilson v. Robertson, 21 N. Y. 587; Menagh v. Whitwell, 52 id. 146.) The preference to Daniel Gr. Major of the $1,500 for money loaned as of August 8, 1883, which was duly paid December 11,1883, is a fraudulent preference. (Story’s Eq. Juris. § 193; Tabor v. Van Tassel, 86 N. Y. 642; Loos v. Wilkinson, 110 id. 175, 209; Starin v. Kelly, 88 id. 418; Talcott v. Hess, 31 Hun, 282; Burrill on Assign. [5th ed.] § 337; Id. 156; Simons v. Goldbach, 56 Hun, 204, 205, 207; 123 N. Y. 637; Bank of Westport v. Raymond, 14 N. Y. S. R. 868, 871; Bank of Champlain v. Wood, 45 Hun, 411, 415; Chandler v. Powers, 9 N. Y. S. R. 169; In re McCallum, 10 Daly, 72; Cohen v. Irion, 26 N. Y. S. R. 1, 2.) The direction in the assignment to pay Daniel Gr. Major, by way of preference, $910.62 in excess of what the referee finds to be due, is an illegal direction with respect to the assigned estate, and invalidates the whole assignment. (Simons v. Goldbach, 123 N. Y. 637.) The judgment in favor of D. Gr. Major, is wholly fraudulent and void, and the referee had no power to amend it by reducing it to the actual indebtedness. (Acker v. Leland, 109 N. Y. 5, 16; Simons v. Goldbach, 123 id. 627.) Assuming that the judgment is absolutely void, the appellants respectfully insist that neither the court below nor the referee had the power to amend the judgment. (Smith v. Mayor, etc., 37 N. Y. 518; Egert, v. Wicker, 10 How. Pr. 193; Wolfe v. Schmenger, 12 Civ. Pro. Rep. 312; Adams v. Ash, 46 Hun, 105, 110; McLean v. Stewart, 14 id. 472; Rockwell v. Carpenter, 25 id. 529.) Should the judgment be modified, as directed by the referee, the lien of Major’s judgment and execution should be postponed to the liens of the contesting creditors. (Symson v. Silheimer, 40 Hun, 116; 105 N. Y. 620.) An attaching creditor is not a creditor at large after the writ is served, but a creditor having a specific lien upon the goods attached, and through the sheriff, if attacked, can show that the assignee’s title was fraudulent as against him. (Rinchey v. Stryker, 28 N. Y. 45; Lux v. Davidson, 54 Hun, 345, 346; Carr v. Van Hoesen, 26 id. 316; Bowe v. Arnold, 31 id. 259.)</p> <p>The judgment in favor of Sparks, is legal and valid. (Voorhees v. Childs, 17 N. Y. 354; Riper v. Poppenhausen, 43 id. 74; Richter v. Poppenhausen, 42 id. 376; Pope v. Cole, 55 id. 127; Arnold v. Camp, 12 Johns. 409; Waydell v. Luer, 3 Den. 410; Millerd v. Horn, 56 N. Y. 406; Dodd v. Ross, 17 Hun, 600; R. S. Bank v. Kramer, 32 id. 270.) The claim of Mrs. Chios Bpencer and judgment recovered thereon are perfectly established. The preference of the claim of Daniel G. Major, which was pxit in judgment, was valid. (Denton v. Merrell, 43 Hun, 228; Church v. Sparrow, 5 Wend. 223; O. Bank v. Hennesy, 48 N. Y. 551; O. C. Bank v. De Puy, 17 Wend. 47; Miller v. Manice, 6 Hill, 115; Hoover v. Greenbaum, 61 N. Y. 311; Smith v. Post, 1 Hun, 518; Jaiger v. Kelly, 52 N. Y. 275; Dudley v. Danforth, 61 id. 626; Townsend v. Stearns, 32 id. 214; Schults v. Hoagland, 85 id. 467; Baird v. Mayor, etc., 96 id. 592; Lorillard v. Clyde, 86 id. 387.) Defendants Yietor and Achilles asked to prosecute the action further on their own account. Under our objection this was • allowed to be done by the referee. The defendants and ■appellants stand, therefore, in the attitude of plaintiffs prosecuting this action. To entitle them to maintain such an action "they must be armed with a judgment recovered for their •claim, and with an execution issued thereon returned unsatisfied. (Reubens v. Jewell, 13 N. Y. 488; Estes v. Wilcox, 67 id. 264; Addee v. Bigler, 81 id. 349.)</p> <p>The assignment was valid. (Bagley v. Bowe, 105 N. Y. 171; Ginther v. Richmond, 18 Hun, 232, 234; Rapallee v. Stewart, 27 N. Y. 315; Benedict v. Huntington, 32 id. 219; Townsend v. Sterns, Id. 209; Crook v. Rindskopf, 105 id. 485; Grover v. Wakeman, 11 Wend. 188; Penal Code, § 586; People v. Briggs, 114 N. Y. 56; N. Y. & B. F. Co. v. Moore, 102 id. 667; Aldridge v. Aldridge, 120 id. 614, 616; Travis v. Travis, 122 id. 449; Billings v. Russell, 101 id. 226-228.) The facts found by the referee having been, affirmed by the General Term will be accepted as conclusive on this appeal. (Flack v. Vill. of Green Island, 122 N. Y. 107-117; People ex rel. v. French, 123 id. 636; Healy v. Clark, 120 id. 642; Ensign v. Ensign, Id. 655.) If additional facts were necessary for the affirmance of the judgment they would be presumed on this appeal to have been moved upon the trial. (E. C. F. Co. v. Hersee, 103 N. Y. 25; Reese v. Boese, 94 id. 623; Flack v. Village of Green Island, 122 id. 107.) It was necessary for the appellants to secure a finding of a fraudulent intent as a matter of fact. A conclusion of law to that effect without its having been found as a fact would have been unavailing. (Robbins v. Mount, 55 Hun, 80; Billings v. Russell, 101 N. Y. 226, 229; Smith v. Perine, 121 id. 376, 381; Kavanagh v. Beckwith, 44 Barb. 194.) All the preferences are of the copartnership debts and not -the creditors. (Griffith v. Marquardt, 21 N. Y. 121, 123; Bank of Silver Creek v. Talcott, 22 Barb. 550; Brainerd v. Dunning, 30 N. Y. 211; Maack v. Maack, 49 Hun, 507; Burley v. Hartson, 40 id. 121, 123; Richardson v. Thurber, 104 N. Y. 606; Fay v. Grant, 53 Hun, 44; Turner v. Jaycox, 40 N. Y. 470; Bogart v. Haight, 9 Paige, 297; Hurlburt v. Dean, 2 Keyes, 97.) The debts of Chloe ‘Spencer and Adelia J. Sparks were valid firm debts. (Turner v. Jaycox, 40 N. Y. 470; Livermore v. Northrup, 44 id. 107; Murray v. Judson, 9 id. 73; Bernheimer v. Rindskopf, 116 N. Y. 428; Smith v. Perine, 121 id. 376; Kavanagh v. Beckwith, 44 Barb. 196; 36 Hun, 136; Brown v. Halsted, 17 Abb. [N. C.] 205; Crook v. Rindskopf, 105 N. Y. 482.) Statements of the assignors made "before the assignment, to be any evidence against the assignee, must be part of the rss yeszte, either of the assignment itself or of some act which is evidence of a fraudulent intent in making the assignment. (Baldwin v. Short, 125 N. Y. 553, 557; Pool v. Ellison, 56 Hun, 108, 111; Vidvard v. Powers, 34 id. 221; Von Sachs, v. Kretz, 72 N. Y. 548; Truax v. Slater, 86 id. 630; Flagler v. Wheeler, 40 Hun, 125; Bullis v. Montgomery, 50 N. Y. 352; Tabor v. Kara Tassell, 86 id. 642; Tilson v. Terwilliger, 56 id. 273; Adams v. Davidson, 10 id. 309; Loos v. Wilkinson, 110 id. 195; Talcott v. Rosenthal, 22 Hun, 573; Tim v. Smith, 13 Abb. [N. C.] 31; Hoover v. Greenbaum, 61 N. Y. 305; Shultz v. Hoagland, 85 id. 468.) The advice of the counsel who prepared the assignment and schedules is a sufficient answer to any criticism on the preference and the statements in the assignment and schedules. (Kavanagh v. Beckwith, 44 Barb. 197; Everson v. City of Syracuse, 110 N. Y. 574, 584; Burnap v. N. Bank 96 id. 125.) Every fact necessary to sustain the judgment, not inconsistent with the referee’s findings, will be assumed to have been proved upon the trial. Eo argument can be made by the appellants upon the judgments obtained by the preferred creditors. (Gutman v. McNulty, 22 Wkly. Dig. 241; 5 Cow. 547.) The failure to keep books of account is not a ground for setting aside an assignment. (Kavanagh v. Beckwith, 44 Barb. 197.) The burden of proof was upon the appellants and did not shift during the trial. (Heineman v. Heard, 62 N. Y. 448; Hobart v. Hobart, Id. 80; Fountain v. Pettee, 38 Hun, 184; Bergman v. Jones, 94 N. Y. 51; Kennedy v. Thorp, 51 id. 174.) The judgment comformed with the decision, except as to matters to which the appellants consented. Ifo questions can" be reviewed on appeal in relation thereto. (Burr v. De La Vergne, 102 N. Y. 417.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made October 11,1889, which certified and taxed the expenses of a reference under chapter 354 of the Laws of 1880. Also motion by Calvin S. Grosser, the complainant, for leave to withdraw his appeal from that part of said order which dismissed the proceeding.</p> <p>In 1888, Calvin S. Grosser piesented to the General Term charges of official misconduct against Thomas S. King, as police justice of the city of Buflalo, who appeared and denied the same. An order ivas thereupon made appointing a referee to take the proofs, and upon the report of the referee, including the evidence taken, the court found that the respondent was not guilty of the charges preferred, and dismissed the proceedings. (25 1ST. Y. S. K. 792.) In the same order, upon the application of both the complainant and respondent, the court certified and taxed “ the reasonable expenses of such reference * * * at the sum of $4,057.35,” and directed that the same be paid as follows, viz.: To the referee, $408.35;. to the stenographer, $499 ; to the counsel for the respondent, Thomas S. King, “for counsel fees and disbursements,” $1,550; to the counsel for the complainant, Calvin £}. Grosser,. “ for counsel fees and disbursements upon such reference,” $1,600. All of said sums, except the last, were subsequently paid by direction of the common council of the city of Buffalo, but, notwithstanding, this appeal was taken by the city from the order allowing all of the items, without distinction.</p> <p>The motion by Mr. Grosser for leave to withdraw his appeal from that part of said order which dismissed the proceeding, is based upon the fact that since the appeal was taken, said Thomas S. King has been re-elected to the office of police justice of said city.</p> <p>The General Term should not have required the city of Buffalo to pay the costs of the parties instituting these proceedings. (Laws of 1880, chap. 354; Const. 17. Y. art. 6, § 18; Laws of 1847, chap. 280, § 25.)</p> <p>The motion of complainant for leave to withdraw his appeal and to dismiss the appeal of the city of Buffalo should be granted. (Canst. 17. Y. art. 6, § 18; Code Grim. Pro. § 132; Laws of 1880, chap. 354; Laws - of 1847, chap. 280, § 25; Crosby v. Stephan, 97 N. Y. 606; E. L. A. Society v. Hughes, 125 id. 116.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 10, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The finding of facts “ that the defendant is finable to ascertain whether any or what part of the land described in the complaint has been conveyed to ” Langston et al., is conclusive against the respondent on this appeal to show that if the defendant was chargeable with notice of the outstanding deeds he was unable to find out anything about them and consequently could safely complete the purchase for the reason that he would take the title freed from the effects of notice. (Whart. Leg. Max. 89.) The recital operated at most as notice of certain outstanding conveyances. (Nellis v. Munson, 108 N. Y. 461; Sanders v. Townshend, 89 id. 623.) The absence of a hostile record or possession after a lapse of time freed the title from the effects of the notice. (Birdsall v. Russell, 29 N. Y. 250; Page v. Waring, 76 id. 471; Willard on Beal Estate [2d ed.], 121; Acer v. Westcott, 46 N. Y. 392; Rogers v. Jones, 8 N. H. 264.) • The plaintiff is protected in her title by the Becording Acts. (1 R. S. 756; Wood v. Chapin, 13 N. Y. 509; Hayes v. Nourse, 114 id. 606.) The title is such a one as a court of equity should compel a purchaser to take. (Ferry v. Sampson, 112 N. Y. 415; W. P. I. Co. v. Reymert, 45 id. 703; Nellis v. Munson, 108 id. 461; Chamberlain v. Sparger, 86 id. 606; Daw v. Whitney, 147 Mass. 1; Moser v. Cochrane, 107 N. Y. 41.)</p> <p>Where, from a description in a deed, the amount of land sought to be conveyed cannot be ascertained, no title passes. (Raynor v. Timerson, 46 Barb. 518; Hathway v. Power, 6 Hill, 453; Jackson v. Clark, 7 Johns. 217; Finley v. Cook, 54 Barb. 9; Jackson v. Marsh, 6 Cow. 281; Jackson v. Roosevelt, 12 Johns. 97; Jackson v. Delancey, 13 id. 537; Jackson v. Ransom, 18 id. 107.) Conceding that possession sometimes cures defects in the title, nowhere has it ever been been held that a vendee can be compelled to take and pay, as for a merchantable title, where there is neither a title of record nor a title by prescription. (Schriver v. Schriver, 86 id. 575; Post v. Bernheim, 31 Hun, 247.) The evidence in the Harrison record is obviously collusive, and-the whole suit an obvious sham, and a silly attempt to make a record against parties who were not jiresent, who were not cited, and who did not have their day in court. (Schriver v. Schriver, 86 N. Y. 584.) Under the contract made between the parties to this action, the defendant can insist on a marketable title, one not open to reasonable objections. If there is a reasonable doubt about this title, specific performance should not be compelled. * (M. E. C. Home v. Thompson, 108 N. Y. 618; Ferry v. Sampson, 112 id. 415; Toole v. Toole, Id. 333; Abbott v. James, 111 id. 673.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court below erred in holding that the relations between the parties were simply that of pledgor and pledgee. (Laws of 1882, chap. 402.) The court below erred in not allowing proof of usage which did not contravene any existing law.

This action was begun May 2, 1889, to recover a judgment to perpetually restrain the defendant from excluding the plaintiffs from using as a way a strip of land one rod in width, extending along the east side of their premises (lot 45), and damages for having prevented them from having so used the strip before the action was begun.

The question submitted was as to plaintiff’s right to the specific performance of a contract for the purchase by defendant- of certain land, and the facts, so far as material, are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court, in the fifth judicial department, made June 22, 1889, which reversed a judgment in favor of plaintiff, entered upon a verdict and reversed an order denying a motion for a new trial.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 6, 1889, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the court and affirmed an order denying a motion for a new trial.</p>