Volume 131 — New York Reports

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The paper purporting to be a certificate of incorporation of said society was improperly admitted in evidence. (Laws of 1813, chap. 69, § 3.) The petitioner’s exhibits were not properly executed and were ■improperly admitted in evidence. (Laws of 1813, chap. 60, § 6.) A religious corporation is a corporation aggregate consisting of the members of the society.

The nature of the action and the facts, so far as material, are stated in the opinion. The validity of the contract upon which the plaintiff claims, was established by the-decision of this court on the former' appeal.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made Hay 11, 1891, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiff as a taxpayer of the town of Islip to restrain the imposition and collection of a tax levied upon the property in said town to pay the Great South Bay Water Company, one of the defendants, certain money, under an agreement made with the authorities of said town by which said company agreed to erect water-works and lay in the principal streets of the town twenty-three miles' of pipe, “for the purpose of supplying the town and its’inhabitants with pure and wholesome water in accordance with the grant of right of way to lay pipes, etc. * * * said pipes to be" laid under the direction and supervision of the highway commissioner of each district * * * and to erect two hundred fire hydrants at such points on the line of said pipes as shall be designated by the said town authorities in accordance with the grant heretofore passed, the same to be used for the extinguishment of fires only, and all reasonable exhibitions and practice by the fire departments and fire companies of the town * * *. The services of said highway commissioners to be paid for by said company.” The contract also provided that “ there shall be erected and operated two pumps of standard manufacture and appropriate size, each having a capacity of pumping one million gallons in every twenty-four hours.” The town stipulated to pay said company $6,000 per annum for twenty years.</p> <p>Further facts are stated in the opinion.</p> <p>The contract was not executed in conformity with the power and authority given by chapter 369 of the Laws of 1889. (Booth v. C. M. Co., 74 N. Y. 22; S. W. Co. v. City of Syracuse, 116 id. 178.) A contract made under statutory power, by virtue of which the property of a citizen may be taken under the guise of taxation, must be within the strict terms of the power in order to affect the citizen’s rights. (People v. Spencer, 55 N. Y. 1; Town of Solon v. S. Bank, 114 id. 130; People v. Hurlburt, 46 id. 110; Town of Wellsboro v. N. Y. & C. R. R. Co., 76 id. 182; Dickinson v. City of Poughkeepsie, 75 id. 65 ; S. W. Co. v. City of Syracuse, 116 id. 167.) It will not do to state that the water company have made their contract, have expended their money, and, therefore, should be protected, as might be said of an individual. (Parr v. Vil. of Greenbush, 72 N. Y. 463.) The court erred in their construction of the contract. (Armstrong v. Grant, 56 Hun, 226.) There was no laches on the part of the plaintiff. (N. Y. R. Co. v. Rothery, 107 N. Y. 310.) The court erred in finding that “ after the execution but before the delivery of the contract,” the water company agreed to pay the highway commissioners three dollars per day “ for the days actually spent by them in said inspection.” (Stokes v. Phelps, 47 Hun, 570; In re Breslin, 45 id. 210; Power v. Vil. of Athens, 99 N. Y. 592; People v. Jaehne, 103 id. 182; Heckman v. Pinkney, 81 id. 211; Anderson v. Anderson, 112 id. 104; Garnett v. Bradley, 48 L. J. [N. S.] 186.)</p> <p>The application required by the statute was made by this company. (Laws of 1886, chap. 452, § 1.) The company could only be organized under the special act permitting the organization of waterworks companies. (Laws of 1889, chap. 492, § 5.) There is an implied covenant on the part of the water company to furnish and maintain, during the existence of the contracts, an abundant supply of water for the purposes mentioned in the statute. (Jones v. Kent, 80 N. Y. 588.) If the company had refused to furnish this supply of water, the town could have brought an action for specific performance or for damages. (Booth v. C. R. Mill, 74 N. Y. 15; Jones v. Kent, 80 id. 588; N. E. I. Co. v. G. E. R. R. Co., 91 id. 153 ; Mansfield v. N. Y. C. R. R. Co., 102 id. 211.) The appellant, by reason of his laches, cannot maintain this action. (White v. Town of Stamford, 37 Conn. 378.) Chapter 691 of the Laws of 1868, providing for the compensation of highway commissioners in the county of Suffolk, at the rate of three dollars per day, was at the time of the trial of this action in full force and effect. (In re Evergreen Cemetery, 47 N. Y. 216 ; In re Central Park, 50 id. 493 ; People v. Quigg, 59 id. 83 ; People v. Brinckerhoff, 68 id. 259.)</p>

Special Term. This was an action to vacate an assessment for paving the southerly portion of Genesee street in the city of Utica, brought by one of the abutting owners, on the ground that it was invalid on account of various defects in the proceedings,, which are set forth in the opinion.

<p>The effect of a decision by this court affirming an order, granting a new trial and directing judgment absolute in the Supreme Court in favor of plaintiff, in an action to recover damages, is the same as if the whole of plaintiff’s cause of action had been admitted and a default had occurred.</p> <p>A proceeding, therefore, for an assessment of damages as prescribed by the Code of Civil Procedure (§ 194), after the judgment of this court in such a case has been remitted to and made the judgment of the court below, is similar to the taking of an ordinary inquest, and while for the purposes of convenience, it is better to have the assessment made at a Circuit, it is not requisite that it should be.</p> <p>Where the assessment is by a jury at a Circuit, the rules for reviewing the trial of an action do not prevail.</p> <p>It seems after the completion of the trial, a motion may be made to set aside the inquisition. It will not be granted, however, simply because of the admission of improper evidence, but only where it appears that injustice has been done. The motion is addressed to the discretion of the court, and when refused, a judgment entered upon the inquisition is not reviewable upon legal grounds.</p> <p>While it seems, an appeal may be taken to the General Term from the order refusing the motion to set aside the inquisition, the decision of the General Term thereon is not reviewable here; at least unless an abuse of its discretion by the court below is shown.</p> <p>Jurisdiction to review such a decision is not given by the provision of said Code (§ 1337) providing for the review here of an order affecting a substantial right not resting in discretion, as it does rest in discretion, and only questions of law are by said provision to be reviewed.</p>

This action -was upon three mortgage bonds. Plaintiff claimed to recover principal and interest. The trial court held that plaintiff was entitled to recover the interest due represented by coupons attached to the bonds, but not the principal. Defendant had served an offer to allow judgment for the interest' and costs. The facts, so far as material, are stated in the opinion.

This action was brought for the construction of the last will and' testament of Araos Cotting, deceased, who died May 12, 1889', leaving him surviving a widow, a son and a daughter. After- disposing of part of his property the testator gave the residue to Charles Uriah Cotting, his successors and assigns, in trust for the following uses and purposes: “ First.

entered upon an order made the first Tuesday of May, 1891, which confirmed' the proceedings of the defendant in assessing and imposing altax upon the relator and settling an account therefor. The facts, so far as material, are stated in the opinion, The act in question, according to its true construction, does not subject the relator’s business to taxation, and the comptroller, therefore, had no jurisdiction to make the assessment.

The nature of the action and the material facts are stated in the opinion. There was no warranty of the quality of the coal which Robert Hare Powell & Company had, by their contract, agreed to deliver.

The facts, so far as material, are stated in the opinion. The application 'having been made by petition, and not by affidavit, is irregular, and the order made therein is void, unless this irregularity was expressly waived, which was not done. (Code Civ. Pro. § 1381;) The judgment herein referred to having been recovered nearly seven years after the conveyance of the property by Boyle to Little, could not be, is not, and never was a lien thereon. (Code Civ.

Pierce, a deceased trustee. The facts, so far as material, are stated in the opinion. A trust of personalty is not within the Statute of Uses and Trusts, and may be created for any purpose not forbidden by law; it may be created without writing, and the delivery of the property is sufficient to pass the title.

<p>In common law and prior to the passage of the act requiring the construction of fire escapes, etc., upon the outside of all factories three stories or over in height and of scuttles leading to the roof (Chap. 409, Laws of 1886, as amended by chap. 462, Laws of 1887), the owner of such a factory, not particularly exposed to the danger of fire from the character of the work carried on within it, was not bound to anticipate such danger, or to provide anything more than the ordinary means of egress, i. e., stairs, halls, door-ways and windows.</p> <p>It seems that said act imposed a duty upon the owners or occupanl s of the prescribed class of factories, for an omission to perform which an operative inj ured because thereof, may recover damages.</p> <p>This duty, however, being created by the act, is measured by it and cannot be made to exceed its terms.</p> <p>In an action to recover damages for the death of P., plaintiff’s intestate, caused by the destruction by fire of defendant’s factory, in which P. was employed, it was claimed that defendant had neglected to comply with said act and that this operated to cause the death. It appeared that defendant had placed two fire escapes upon its factory, which connected with each floor above the first, and were well fastened, perfectly secure, and of sufficient strength; their number, character and location were examined and approved after careful inspection by the proper officer, and reported by him as meeting the requirements of the law. The building had no scuttle leading to the roof with a stationary ladder, but one of the fire escapes, which was a ladder of iron rungs, was carried up to the roof giving access to it. It appeared that an inside ladder and scuttle would have been an utterly unavailable means of escape from the fire, however it might have been constructed. Held, that no omission of duty on the part of defendant was shown which rendered it liable.</p> <p>It was claimed by plaintiff that the blinds to the windows were open, that when open they closed over one of the fire escapes, making access to it difficult, and that this established negligence. The inspector, with full knowledge of the presence and effect of the blinds, did not order them removed, but deemed the escape sufficient. One of defendant’s workmen escaped by that route. There was no proof that any one was turned back because he could not reach the escape. Held, that the presence of the blinds did not establish negligence on the part of defendant.</p> <p>The specific negligence charged by the plaintiff was the existence of a. chute leading into the basement of the factory beneath one of the fire escapes, so that a person dropping from one of its lower rungs would be likely to fall into the opening and be returned to the factory. The evidence showed that B. did not meet his death from this cause; that he did not descend the fire escape, hut was suffocated in the smoke which filled the building. Held, that no actionable negligence was shown.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 8, 1890, which affirmed so much of a judgment entered upon a decision of the court on trial at Special Term, as was in favor of plaintiff, and reversed and granted a new trial as to so much thereof as was in favor of defendants.</p> <p>This action was brought by plaintiffs, who are the children of two of the deceased sons of James S. Carpenter, deceased, and the widow of one of said sons, against the widow and the six surviving children of said James S. Carpenter, to have set aside and canceled of record, as fraudulent and void, the proceedings and judgments in two actions for the foreclosure of mortgages, and in an action for the partition of real estate and for other relief, etc.</p> <p>The questions arose under the will of James S. Carpenter, deceased, the material portions of which are as follows:</p> <p>“ 4. The house in which I live and the lot on which it stands as hereinafter described shall be reserved for those of my children who have no family and for those of my family who are destitute of a home and are not able to work.</p> <p>“ 5. All my other landed property to be sold or divided equally among my children as they all may think best, but nothing shall be done contrary to the wishes of their mother while she lives.</p> <p>“ Y. My wife is to have the use of all my money estate during her life. * * * All the money is to be equally divided among the children after their mother is done with it.</p> <p>“ 10. Whatever other property I may be possessed of at my decease, and which is not disposed of in the foregoing, I give to my wife at her free disposal.”</p> <p>The facts, so far as material to the foreclosure suits, as well as other material' facts, are sufficiently stated in the opinion.</p> <p>The action of partition was brought by the defendant Coles A. Carpenter against the other parties hereto. By the judgment therein the premises were ordered to be sold ; they were so sold and were bid in by defendant Coles A. Carpenter for $800.</p> <p>The reversal was on questions of law only. (Code Civ. Pro. § 1338.) Whatever remedy, if any, these plaintiffs had by reason of the alleged inadequacy of price, it must have heen sought in the action for partition itself. Courts of equity do not entertain independent actions for such purpose. (Sanders v. Soutter, 126. N. Y. 199.) Wrongs committed by the defendants or duties neglected by them in pursuance of a common intention, will not raise a trust where such acts or neglect without combination would not have that effect. (Cooley on Torts [2d ed.], 143, 144; Hunt v. Simonds, 19 Mo. 583 ; B. L. O. Co., v. Everest, 30 Hun, 586; L. O. Co. v. S. O. Co., 42 id. 153.) Malicious motive is not material where no right is violated and no legal duty is neglected, however seriously prejudicial the consequences resulting may be. Courts in such cases will not inquire whether the party has been actuated by malice. (Phelps v. Nowlem, 72 N. Y. 39 ; Auburn, etc., v. Douglass., 9 id. 450 ; G. I. Co. v. Uhler, 75 Penn. St. 467; S. R. Bank v. S. Bank, 27 Vt. 505; Hutchins v. Hutchins, 7 Hill, 104.; Hunt v. Simonds, 19 Mo. 583, 588.) Defendants had a right to have the mortgages foreclosed. (Wright v. Holbrook, 32 N. Y. 589.) The mere fact that the purchaser was a tenant in common of the equity of redemption, does not incapacitate him from purchasing for his own account. (Streeter v. Schultz, 45 Hun, 406; Freeman on Co-tenancy, § 165.) A plaintiff must stand by the theory of his case as presented by his complaint and on the trial. (H. Ins. Co. v. W. T. Co., 51 N. Y. 93; Stephenhorst v. Wolff, 65 id. 596; Armstrong v. DuBois, 90 N. Y. 95.) Even if the defendants had had in hand, at the time of the foreclosure, rents and profits sufficient to pay the interest, the plaintiffs had no rights therein. (LeBarron v. Babcock, 122 N. Y. 157.) The Statute of Limitations is a defense. (Code Civ. Pro. § 382.)</p> <p>The executors having in their hands and under their control sufficient personal property to pay and discharge all debts and liabilities of the deceased, in whatever form they existed, were0bound to pay and discharge them. (In re Babcock, 115 N. Y. 450.) There is no suspension of the power of alienation beyond the statutory period. (2 R. S. chap. 1, § 15.) After the property was sold, it was controlled by the executors, and all the business was conducted by them just the same as before. This presents a false appearance, and the plaintiffs claim and insist that it is proof of only a pretense of sale. (Wait on Fraud. Con. § 348.) The defendants have obtained, by fraud, the record title to property which the plaintiffs are entitled to; they should be held to be trustees ex maleficio. (Piper v. Hoard, 107 N. Y. 73, 81; O'Hara v. Dudley, 95 N. Y. 403, 415.) The abuse of confidential relations between trustees and cestui que trusts, whereby the trustees obtain, or might obtain, an advantage or a benefit, is illegal and avoids all transactions, in whicli such relations have been abused. (Jones v. Jones, 120 N. Y. 589 ; Barr v. N. Y., L. E. & W. R. R. Co., 125 id. 274.) The evidence clearly shows that the executors embraced the opportunity afforded by their relation to the estate, to gain an undue advantage over the plaintiffs, and by so doing committed a gross violation, of their trust for which they should be held to a strict account. (Fisher v. Bishop, 108 N. Y. 25; Green v. Bowarth, 113 id. 462.) Coles A. Carpenter being an executor of the will of James S. Carpenter, deceased, by virtue of which he had control of the property mentioned in the partition suit, could not purchase said property, and having pretended to purchase it, such purchase is voidable at the option of the respondents. (Fulton v. Whitney, 66 N. Y. 548; Scholle v. Scholle, 101 id. 167.)</p> <p>A judgment or sale obtained by a fraudulent concealment that, with funds of the estate, it was to cut off title.of infant wards of the court, and to vest it in the six other heirs, rendered the whole proceeding void even when attacked collaterlv. (Clark v. Underwood, 17 Barb. 202, 221; Dobson v. Pearce, 12 N. Y. 156, 165; Mandeville v. Reynolds, 68 id. 529, 542, 546; O'Mahoney v. Belmont, 62 id. 145.) Defendants were in possession and receipt of the rents and profits. They were under an obligation, as co-tenants, to use them to pay the interest on an incumbrance so small in proportion to the actual value of the real estate. It is a fair presumption that property would pay the interest on so small a proportion of its value. (Dubois v. Campau, 24 Mich. 361, 368; Rothwell v. Dewees, 2 Black [U. S.], 613, 618, 619; Knolls v. Barnhart, 71 N. Y. 474, 480; Wohlpart v. Beckert, 92 id. 497.) The executors were by the will required to pay the testator’s debts. (1 R. S. 749, § 4.) The life tenants were required to keep down the interest. (Bidwell v. Greenshield, 2 Abb. [N. C.] 431; Fleet v. Dorland, 11 How. Pr. 489; Sheldon v. Ferris, 45 Barb. 124,127; King v. King, 8 J. & S. 516, 517.) One or more tenants in common who is as much required as the co-tenants to pay an incumbrance cannot as against co-tenants permit a sale on an incumbrance, he, as much as a co-tenant, is required to pay and thereunder obtain a title to effectually cut off the rights of a co-tenant. (Knolls v. Barnhart, 71 N. Y. 480; Van Horn v. Fonda, 4 Johns. Ch. 388, 407, 408; Dubois v. Campau, 24 Mich. 368; Busch v. Huston, 75 Ill. 343, 347 ; Rothwell v. Dewees, 2 Black, 613; Knolls v. Barnhart, 71 N. Y. 474.)</p>

<p>1. Malicious mischief—Section 654 of Penal Code. '</p> <p>Under section 654 of the Penal Code, an unlawful, as well as willful, destruction of property must be proved.</p> <p>2. Same.</p> <p>In such case, the defendant may give evidence in proof of justification, of his act.</p> <p>3. Same.</p> <p>Where the evidence tends to show that the destruction was in the defense of ownership and possession, the question whether there was excusable cause is one of fact.</p> <p>4. Same.-</p> <p>Ownership and possession of property may justify destruction of the means to invade and interfere therewith.</p>

<p>Appeal from a judgment of tibie supreme court, general term, 'fifth department, affirming judgment of the court of sessions of Niagara county, convicting defendant of the crime of larceny in the first degree.</p>

This action was brought to recover interest upon $61,500, the amount of an award to plaintiff for land taken by defendant under chapter 191 of the Laws of 1888, “ An act to provide for the acquisition of sites for school buildings by the board of education of the city of Mew York,” from July 5, 1889, the date on which the report of the commissioners appointed in the proceeding was confirmed, said amount having been paid to plaintiff September 20, 1889, without interest.

The facts, so far as material, are stated in the opinion. It was error for the trial court to withhold from the jury the question as to whether plaintiff understood that he was suspended or discharged, and all that the said question implies.

The nature of the action and the facts, so far as material,, are stated in the opinion. The question involved in this appeal has been determined by this court. (Moore v. Loew, 105 N. Y. 666.) The order of the Superior Court striking out certain parts of the answer as sham was correct, and should be sustained on appeal.

This action was brought by the attorney-general on behalf of the people to annul the defendant’s charter. The defendant was organized as a corporation on the 18th day of August, 1885, under the General Manufacturing Act of 1848. Its capital stock was $90,000, divided into nine hundred shares of one hundred dollars each.

The nature of the action and the facts, so far as material, are stated in the opinion. The defense of- failure of consideration was established, hence the judge erred-in directing a verdict for plaintiff. (Harris v. Clark, 3 N. Y. 93; Burnwell v. Jackson, 9 id. 535 ; Coates v. F. N. Bank, 91 id. 26.) Chace having become insolvent, one note should have been offset against the other.

This action was brought upon a bond given by the defendant Dodge with Christian Sauer, now deceased, and the defendant and appellant John McDermott, as sureties, to Bernard Reilly, sheriff of the city and county of New York, also now deceased, conditioned for the faithful performance of the duties of deputy sheriff by the said Dodge, under said Bernard Reilly as sheriff. The facts, so far as material, are stated in the opinion.

Appeal also from order of the General Term of the Supreme Court in the first judicial department, made December 31,1891, which affirmed an order at Special Term which denied the application of Sarah A. Jarvis to be joined as a party-defendant. The controversy in this action was as to the title of a bond and mortgage executed in May, 1884, by Henry Korn to Judson Jarvis. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The ledgers were not admissible in evidence.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made May 21, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plaintiff failed to establish any valid claims against the estate of Mary Bosseau. (Havens v. Havens, 21 N.Y. S. R. 958; Lynn v. Smith, 35 Hun, 275 ; Ross v. Hardin, 79 N. Y. 90; Williams v. Hutchinson, 3 id. 312; Davis v. Gallagher, 29 N. Y. S. R. 882; Walters v. Mahew, 30 id. 46.) The findings of fact in the decision do not warrant, authorize or justify the conclusions of law. (Laws of 1858, chap. 314; Laws of 1889, chap. 487; Platt v. Platt, 105 N. Y. 488 ; Price v. O. & S. R. Co., 50 id. 213; Armstrong v. DuBois, 90 id. 95 ; Berdell v. Allen, 116 id. 661.) The eighth finding of fact, to wit: “ That said deed was executed hy Mary Rosseau with intent to defraud her creditors out of debts then existing and thereafter to be incurred,” is without evidence to support it, and is, therefore, error of law reviewable in this court. (Bedlow v. D. D. Co., 112 N. Y. 263; Williams v. Davis, 69 Penn. St. 28; Hoyt v. Godfrey, 88 N. Y. 669.) The court erred in its refusal to decide that Jennie Bleau is in contemplation of law a purchaser for a valuable consideration of the property in suit from Mary Rosseau. (Bedlow v. D. D. Co., 112 N. Y. 263; Code Civ. Pro. § 829; Truesdell v. Sarles, 104 N. Y. 164; Van Wyck v. Baker, 16 Hun, 168; Flannigan v. Barker, 12 N. Y. S. R. 554; Starin v. Kelly, 88 N. Y. 418; Parker v. Conner, 93 id. 118; Stearns v. Gage, 79 id. 102 ; Farley v. Carpenter, 27 Hun, 359; Jaeger v. Kelly, 52 N. Y. 274; Manning v. Ennis, 21 Wkly. Dig: 27; Zoller v. Riley, 100 N. Y. 102; Murphy v. Riggs, 89 id. 446 ; T. Banking Co. v. Duncan, 86 id. 221; Dudley v. Danforth, 61 id. 626 ; Bedell v. Chase, 34 id. 386 ; Seymour v. Wilson, 19 id. 417; Wood v. Robinson, 22 id. 564; Doty v. Clint, 11 N. Y. S. R. 87; Warren v. Wilder, 114 N. Y. 207.) The court erred in refusing to show that Mr. Myers, in drawing the deed in suit, acted as a draughtsman only. (Renihan v. Denine, 103 N. Y. 573; In re Coleman, 111 id. 220; Sanford v. Sanford, 61 Barb. 293 ; Sheridan v. Houghton, 16 Hun, 628; Pearsall v. Elmer, 5 Redf. 181; In re Chapman, 27 Hun, 573; Whepley v. Loder, 1 Dem. 368 ; In re McCarthy, 28 N. Y. S. R. 342.) It was error to refuse to permit the defendant to prove declarations of Mary Rosseau as to her indebtedness to Jennie Bleau. (Smith v. Smith, 3 Bing. [N. C.] 29; Cunningham v. Smith, 70 Penn. St. 458; Greenl. on Ev. § 189 ; Laws of 1858, chap. 314.) It was error to refuse to permit the defendant to prove the instructions Mary Rosseau gave to Mr. Myers as to the delivery of the deed in suit to the defendant. (In re Coleman, 111 N. Y. 220.) Eo judgment can be given in favor of a plaintiff on grounds not stated in his complaint, nor relief granted for matters not charged, although they may be apparent from some part of the pleadings or evidence. (Truesdell v. Sarles, 104 N. Y. 164, 167; Code Civ. Pro. §§ 1638, 1639; Fisher v. Hall, 41 N. Y. 416; Stillwell v. Hubbard, 20 Wend. 44; Roosevelt v. Carow, 6 Barb. 190; Mitchell v. Bartlett, 51 N. Y. 447; Ford v. James, 4 Keyes, 300; Brewton v. Smith, 28 Ga. 442; Eckman v. Eckman, 55 Penn. St. 269; Pratt v. Pond, 5 Allen, 593; Platt v. Platt, 105 N. Y. 488.) The form of the judgment is in accordance with the prayer o£ the complaint. It overrides the statutory provisions for enforcing debts of deceased persons against their real estate. (Code Civ. Pro. § 2749.)</p> <p>While under the restrictions of the statute plaintiff could not prove the express terms of the contract between Elizabeth and Mary Rosseau, the evidence docs show facts from which the law implies such agreement, and from which the jury might properly find the agreement and the indebtedness. (Markey v. Brewster, 10 Hun, 16; 70 N. Y. 607; Woodward v. Bugsbee, 2 Hun, 129; Davidson v. W. G. L. Co., 99 N. Y. 558.) And a finding that there was an express contract will be supported on appeal where, from the evidence, the law can imply a contract. (Smith v. Tippincott, 49 Barb. 398.) All that is required of the plaintiff in this action on that point is to establish claims sufficient to show the insolvency of the estate of Mary Rosseau, and that is done in proving the one claim of Elizabeth Rosseau. (Lore v. Dierkes, 19 J. & S. 144.) The twenty-second request, which was found, to wit, that Mary Rosseau was not insolvent March 6, 1888, the date of the deed, does not offer any basis for argument in support of the validity of the deed. (Jackson v. Leek, 12 Wend. 105 ; Wood v. Hunt, 38 Barb. 302.) The findings of fact are all supported by evidence and this court on appeal will not consider or disturb them. (Baird v. Mayor, etc., 96 N. Y. 567; Ritter v. Cushman, 35 Hun, 284.) Many of the facts requested to be found were immaterial. Any error in respect to such request cannot prejudice the defendant, and will not be here reviewed. (O. Ins. Co. v. Minard, 2 N. Y. 98, 193; Clarke v. Dutcher, 9 Cow. 674; Page v. Ellsworth, 44 Barb. 636.) This action was properly brought by the administrator. (Harvey v. McDonald, 113 id. 526; Batl v. Graham, 11 id. 237; Southard v. Benner, 72 id. 424; Lore v. Dierkes, 19 J. & S. 144; Potts v. Hart, 99 N. Y. 168; Lichtenburgh v. Herdfelder, 103 id. 302; Town of Mentz v. Cook, 108 id. 504; Grandin v. LeRoy, 2 Paige, 508.) The deed was -properly held, as a matter of fact and law, fraudulent, null and void. (Dunlop v. Hawkins, 59 N. Y. 342; Pendleton v. Hughes, 65 Barb. 136 ; Billings v. Russell, 101 N. Y. 226; Wood v. Rolinson, 22 id. 564; Carpenter v. Roe, 10 id. 227; Case v. Phelps, 39 id. 164; Savage v. Murphy, 34 id. 508; Shand v. Hanley, 71 id. 319; Cole v. Tyler, 65 id. 73; Carr v. Breese, 18 Hun, 134.) There was no delivery and no acceptance of deed during the life of Mary Rosseau. Delivery and acceptance are essential requisites to the validity of a deed. (Jackson v. Leek, 12 Wend. 105 ; Stillwell v. Hubbard, 20 id. 44; Stephens v. B. & N. Y. R. R. Co., 20 Barb. 332; Fonda v. Sage, 46 id. 109; Bracket v. Barney, 28 N. Y. 333 ; Roosevelt v. Caron, 6 Barb. 190 ; Jackson v. Rowland, 6 Wend. 666; Crosly v. Hillyer, 24 id. 280; Foster v. B. S. Co., 47 Barb. 505.) The proposed evidence of Michael IT. Myers was properly rejected. (Code Civ. Pro. §§ 835, 836; Morrill on Witnesses, 111-115; Root v. Wright, 84 N. Y. 72; Bacon v. Frisbie, 80 id. 394; Yates v. Olmstead, 56 id. 632; Westover v. Æ. L. Ins. Co., 99 id. 56.) The statements of Dr. Prefontaine as to conversations with Mary Rosseau, and declarations made by her, were properly rejected. (Code Civ. Pro. § 834; Laws of 1858, chap. 314; Harvey v. McDonald, 113 N. Y. 526; Porter v. Williams, 9 id. 142, 149; Barton v. Horner, 24 Hun, 467; Southard v. Benner, 72 N. Y. 424; Van Gelder v. Van Gelder, 81 id. 625 ; Angrave v. Stone, 45 Barb. 35 ; Waldele v. N. Y. C. R. R. Co., 95 N. Y. 274; Clews v. Kerr, 90 id. 663; Truax v. Slater, 86 id. 630 ; Ogden v. Peters, 15 Barb. 530; Wilson v. Pope, 37 id. 321; Wilson v. Bocum, 15 Johns. 286; Gray v. Goodrich, 7 id. 95; Dickson v. McElwain, 7 How. Pr. 138; Cook v. Dickinson, 5 Sandf. 663 ; U. Bank v. Mott 13 Abb. Pr. 241; O. N. Bank v. Stokes, 58 Barb. 508; People v. Allbright, 23 How. Pr. 30; Palmer v. Rankin, 56 id. 354; Stone v. Childs, 15 Hun, 511,521; Law v. McDonald, 9 id. 23.) If this deed be as found, fraudulent or void, then it should be set aside, and the property, so far as necessary applied to the payment of debts. (Taylor v. Taylor, 43 N. Y. 584; Grandin v. LeRoy, 2 Paige, 508; Code Civ. Pro. § 2751; Lore v. Dierkes, 19 J. & S. 144; U. N. Bank v. Warner, 12 Hun, 306 ; Cole v. Tyler, 68 N. Y. 73 ; Porter v. Williams, 9 id. 142; Hulce v. Sherman, 13 How. Pr. 411; Campbell v. Adams, 38 Barb. 132.) Objection not raised below will not be here considered. (Cheney v. Beals, 47 Barb. 523; Wood v. Young, 5 Wend. 620; McDonald v. Christie, 42 Barb. 36 ; Oatmam, v. Taylor, 29 N. Y. 649; Christenson v. Colby, 43 Hun, 362; Rainsford v. Rainsford, 57 Barb. 58.)</p>

These proceedings were instituted under chapter 276 of the Laws of 1890, “ An act to authorize the sale of certain real property in the city of Mew York, conveyed by John M. Bradhurst and wife to Hickson W. Field, Jr., and Mary Elizabeth Field and others.” Said premises were owned by said John M. Bradhurst in his life-time and he conveyed them to his daughter and her husband for their lives and the life of the survivor, with remainder in fee to their lawful issue living at…

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The facts which entitle the relator to a preference in public office being undisputed, the order of the General Term is appealable to this court.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The denial of the pension was erroneous. (People ex rel. v. Common Council, 78 N. Y. 63.) The discretion given by the legislature is not capricious, willful or arbitrary. The action of the commisr sioners was an abuse of discretion.

The material facts are stated in the opinion. The parties to an action have always had the right to settle their matters in litigation before or after judgment and satisfy and discharge judgments, independent of their attorneys.

Thomas, entered upon a decision of the court on trial at Special Term, .and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. The respondent, who was 'originally named in the certificate, had no vested right in the relief fund or in the rights secured by the certificate during the life of the assured.

<p>It seems, that interferences with public and common rights, creating a ■ public nuisance, when accompanied with special damage to the owner of lands, give also a right of private action'; the public nuisance as to the person who is specially injured thereby in the enjoyment or value of his lands, becomes also a private nuisance.</p> <p>Such an action, however, can only be maintained by one who is an owner or has some legal interest, as lessee or otherwise in the land which is affected by the nuisance.</p> <p>Where, therefore, in such an action the evidence showed that plaintiff had no lease or other interest in the premises occupied by him and his family which were affected by the nuisance, but that they belonged to his wife, the family being supported by him but, so far as appeared, living in the house by her sufferance, lúld, that plaintiff could not maintain the action; that both the occupation and possession was in a legal sense that of the wife and not of the husband.</p>

Cross-appeals from order of General Term of the. Superior Court of the city of Hew York made December 28, 1891, which affirmed an order at Special Term framing an issue for trial by jury in the above entitled action. The nature of the action and the facts, so far as material, are stated in the opinion. The provision of the Code (§ 970), as amended by the statute of 189.1, is not unconstitutional.

This action was brought for a partition of certain lots in the city of ¡New York, of which Anthony Lamb died seized and possessed, and a life estate in which he devised to his daughter, Sarah Lamb, by the sixteenth clause of his will.

<p>The rule that the gift of the income of property is a gift of the property itself, only applies where there is no limitation of time attached to the gift.</p> <p>A gift of income followed by a gift over of the corpus on the happening of a contingency, or the death of the beneficiary, is a gift of the income for the intermediate period only.</p> <p>A clause in the will of H. directed that one-third of his residuary estate should be held in trust by his executors, who were directed out of the income to pay to the testator’s son R. $100 per month “for his support and maintenance, and for the support and maintenance of his daughter ” B. during her minority; the clause to be operative only in case she should, after she attained the age of eight years, reside with the testator’s wife or her relatives. In the event of E.’s surviving her father, the will gave to her one-half of said one-third, the other half to the testator’s heirs at law. In the event of the decease of R. leaving no issue surviving, the will provided that the said one-third “ given and devised in trust for him ” should revert to the testator’s heirs at law. It was expressly declared that R. in no event should “ be vested with, receive or control, any part of the principal of the said one-third, but that the same shall be held as trust estate only and the income only paid to him.” E. died when about fifteen years of age. Held, that the trust so created did not terminate on the death of E. but was created primarily for the benefit of R., and continued during his life.</p> <p>H. left surviving him six grandchildren; he bequeathed to each $10,000 to be paid on their attaining respectively the age of twenty-five. “In the event of the decease of either of said grandchildren prior to attain■ing the age of twenty-five” the will provided that "the share of such deceased shall be equally divided between the surviving grandchildren.” R., who was a widower at the time of his father’s death, thereafter married and had two children born before the death of E. Held, that said two children were cot entitled to share in the legacy given to E., but that the gift was to the survivors of the six legatees.</p>

In a proceeding for the settlement of the account of the executrices of Isaac I. Blauvelt, deceased, the following facts appeared: Isaac I. Blauvelt died in 1861, leaving him surviving a widow and two daughters, all of whom were made executrices of his will. One of the daughters renounced the office of executrix and never acted as such. There were no debts.

the General Term of the Supreme ■Court in the third judicial department, entered upon an order made May 21,1891, which reversed a judgment entered upon a decree of the surrogate of the county of Greene, settling the accounts of the petitioners as executors. This was a proceeding for the judicial settlement of the accounts of the executors of the last will and testament of Buel Maben, deceased.

This action was for subrogation to and foreclosure of a mortgage upon certain real estate. John Egan, a resident of the city of New York, died on the 1st day of May, 1875, leaving him surviving his widow, Clara M. Egan, one of the defendants herein, and two children, Clara E. and William G. Egan. He left a will, which was duly admitted to probate, and letters testamentary issued thereon to the widow.

in part an order of the surrogate of the county of New York, assessing and fixing the collateral inheritance tax under the will of Cornelia M. Stewart, deceased. The facts, so far as material, are stated in the opinion. The property passing to the trustee, and through him to Charles J. Clinch and Sarah IT.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 10,1890, which reversed a judgment in favor of plaintiff entered upon an order of the Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This is a case in which “ one or more ” persons may be made defendants, so as to represent and conclude the rights of a whole class, under section 448 of the Code. (Luling v. A. M. Ins. Co., 43 Barb. 510.) Plaintiffs are entitled to the relief asked for, provided the fund in question can properly be dealt with in such manner and provided this court has power to direct the transfer. (Laws ■of 1871, chap. 888.) There is no legal objection to the making of the proposed transfer, and the contention of the defendant Maxwell that this fund should not be dealt with as asked for by the plaintiffs, because that would change, either the beneficiaries for whom, or the trusts under which the fund is held, is unsound. (Laws of 1853, chap. 494, § 23; Laws of 1862, •chap. 367,. § 4; Saunders v. Evans, L. R. [8 H. L.] 728; Lord v. Mayor, etc., 17 Wend. 285; 18 id. 126; Ruggles v. Chapman, 59 N. Y. 165; Laws of 1859, chap. 366; Laws of 1862, chap. 367; Laws of 1871, chap. 888, § 1.) As to the surplus of this fund held by the defendant Maxwell, over $200,000, he is not a compulsory trustee, but a trustee voluntarily chosen by the plaintiff company, and the funds thus voluntarily placed in his hands are subject to being transferred by the court, upon a proper case made, into the hands of other suitable and competent trustees. (Laws of 1853, chap. 466, ;§ 23; Laws of 1862, chap. 367, § 5.)</p> <p>It .appears upon the face of the complaint that the defendant Maxwell, as superintendent of insurance, is a public trustee, holding the- securities in question in his official capacity and by virtue of a statutory trust created for the benefit and ■security of the policy holders of the plaintiff company in the United States, and the court has no power to divest him of the trust and cause the securities to be transferred to trustees .selected by the company, or to change or modify the terms of the trust. (Laws of 1853, chap. 466, § 23; Laws of 1871, .chap. 888, § 2; Ruggles v. Chapman, 59 N. Y. 163; 64 id. 557; G. L. M. Ins. Co., 13 Hun, 115; 74 N. Y. 617; Atty.-Gen. v. N. A. L. Ins. Co., 80 id. 152; 85 id. 485.) The existence of these deposits in the hands of the superintendent •of insurance has presumably been the basis of his official action in granting a renewal from year .to year to the plaintiff company of a certificate of authority to do business in this state, and the plaintiff, having had the benefit of such authority, cannot be permitted to withdraw any part of the securities without the assent of the superintendent. (Doyle v. C. Ins. Co., 94 U. S. 535-542; P. F. Assn. v. New York, 119 id. 110-118.) Unless the plaintiff company has a clear legal right to withdraw these securities and place them in the hands of private trustees, the action of the superintendent in refusing to allow them to be withdrawn is an exercise of official discretion which cannot be controlled by the courts. (Adams v. Ives, 63 N. Y. 650; People v. Canal Board, 55 id. 394.) Chapter 888 of the Laws of 1871, section 2, does not authorize a transfer of the securities held by the superintendent in trust for the benefit of policy holders to trustees selected by the company. (3 R. S. [8th ed.] 1618, 1619, § 2.) There is a defect of parties defendant to this action in that the policy holders of the company have not been joined as defendants therein. (Conkling v. Davies, 53 How. Pr. 409; McDonald v. Frazer, 49 id. 320 ; Rogers v. Rogers, 3 Paige, 379 ; Story’s Eq. Pl. §§ 72, 81, 96; Moore v. Hegeman, 72 N. Y. 376 ; Pell v. Brown, 2 Bro. Ch. 276; Reid v. The Evergreens, 21 How. Pr. 319; Gray v. Schenck, 4 N. Y. 460 ; Long v. Younge, 2 Sim. 369 ; Small v. Atwood, Younge, 407, 457, 458, 459.)</p>

The respondents took title to their property and acquired the fee in the Terrace in front of their property subject to a perpetual public easement therein, and acquired only the naked legal title to the fee, and are only entitled in this proceeding to nominal damages. (Lewis on Em.

In November, 1886, the defendant Patrick Larkin, then a police officer in the city of Kingston, killed the plaintiff’s intestate, David Ifaiu. Thereafter the plaintiff was appointed administratrix of the estate of the deceased, who was her son; and on the 6th day of January, 1887, she brought an action against Patrick Larkin to recover pecuniary damages suffered by the next of kin of her son from his death.

Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 16,1891, which modified and affirmed as modified a judgment, ordered in favor of plaintiff on the report of a referee appointed in a reference under the statute of a claim of James Porter against Patrick H. Kennedy deceased. The referee allowed $7,499.42 with interest from the death of Kennedy.

<p>Appeal from judgment of the supreme court, general term, fourth department, affirming judgment of conviction of arson, in the first degree. , - - - ■ ■ ------ - ■ - -</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 all the provisions, trusts, and remainders con-tamed in this will, were governed by the laws of her domicile at the time of her death. It should have held that they were governed by the law of her domicile at the time of its execution. That is by the law of Hew York, and not by the law of Rhode Island. (Laws of 1876, chap. 118, §§ 3, 5; Code Civ.

<p>Under the provision of the Married Woman’s Act of 1860, charging the property of a married woman for such debts of her husband “ as may have been contracted for' the support of herself or her children by her as his agent ” (§ 1, chap. 90, Laws of 1860), the charge so imposed is not self-executing, but must be enforced, in proceedings instituted for that purpose, preliminary to the taking of the property. The liability must first be adjudged in an action to which she is a party and in which she has had an opportunity to be heard.</p> <p>Accordingly held, that, in the absence of such an adjudication, a levy upon and sale of the property of a married woman under an execution issued, upon a judgment against her husband rendered upon an indebtedness of the kind specified, was unlawful and rendered the sheriff- liable.</p>

1, 1891, which modified, and affirmed as modified, an order of Special Term, confirming the report of a referee appointed to take proof and report as to the distribution of the assets of the Equitable Reserve Fund Life Association of the city of New York upon its dissolution.

This action was brought to recover damages received by plaintiff, caused by her stepping into a hole in a crosswalk or bridge in one of defendant’s highways. The facts, so far as material, are stated in the opinion. The gutter bridge in question was not within the duty of the highway commissioners to maintain or keep in repair.

The testator, Henry Tienten, died leaving a will and codicil thereto, and survived by a widow and four children. Subsequently Henry M. Tienten, one of said children, died, leaving a widow and no issue. By his will and codicil thereto he devised and bequeathed his interest in his father’s estate to said widow.

Cross-appeals from orders of the General Term of the. Supreme Court, in the first judicial department, made December 2 and 11, 1891, in the above-entitled proceedings, which modified and affirmed as modified orders of the surrogate of the county of New York granting allowances out of the estate of Alfred G. Myers, deceased. The nature of the proceedings, and the facts so far as-material, are stated in the opinion.

This was an action of ejectment against Bernardo De La Bionda and his tenants, who claimed title and the right of possession of the premises in dispute, adverse to plaintiff under one Blanco. In 1836 one Minnie Suydam executed a mortgage upon said premises in the city of Brooklyn as part payment of the purchase-price thereof. Said mortgage was virtually transferred to one Stephen C. Jackson.

This action was brought to recover for moneys alleged to have been received by the defendant from the state for the plaintiff’s assignors, who had furnished substitutes for the military service of the United States during the war of the Rebellion. A trial was had in May, 1890. At the close of the evidence a verdict was directed in favor of the plaintiff for $211,851.59, being $400 each for 201 men, and interest.

The nature of the action and the material facts are stated in the opinion. Neither the highway nor the want of a guard or railing was the proximate cause of the accident to plaintiff. Negligence is not actionable unless it is the proximate cause of the injury. (Lowery v. W. U. T. Co., 60 N. Y. 198; Smith v. Kanawha Co., 8 Lawyer’s An. Rep. 82; Ins.

This action was brought to recover damages for alleged negligence, causing the death of Samuel B. Henges, plaintiff’s intestate, who was killed by the falling of a derrick upon a dock, the mast of which was insufficient and dangerous. The facts, so far as material, are stated in the opinion.

Logan, deceased, and ordered the distribution of certain moneys. The facts, so far as material, are stated in the opinion. The words of the residuary clause are of clear, plain and simple import, without any ambiguity whatever.

The complaint herein stated in substance that between 1863 and 1867 plaintiff advanced to his nephew, Adrian Hegeman, for his own account and the account of his mother, Cornelia W. Hegeman, various sums amounting in all to about $3,075, which Adrian agreed to repay. On January 1, 1869, there was due plaintiff for principal and interest, $3,363.41, for which Adrian made and delivered to plaintiff his promissory note payable on demand, with interest.

<p>The writ of certiorari is appropriate only to review the judicial action of inferior courts or public officers or bodies exercising judicial functions. It is not available to review the action of a public officer or body, which is merely legislative, executive or administrative, although it may involve the exercise of discretion.</p> <p>The board of supervisors of Queens county, claiming to act under authority of the act of 1889 (§ 2, chap. 855, Laws of 1869), extending the powers of that board, passed an act “ for the improvement-of public highways in the town of Jamaica,” which provided for the issuing of bonds by the county treasurer to pay the expenses of the improvement, the whole expense to be paid by taxes to be levied on the town. Held, that the action of the supervisors was purely legislative, and so the court had no jurisdiction to review it on certiorari.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. To determine whether a nonsuit is properly granted the court must construe the evidence most strongly against the defendant. (Audubon v. E. Ins.

282, Laws of 1889). The facts, so far as material, are stated in the opinion. The judgment should be reversed because there is no evidence that the Rational Life Insurance Company of Montpelier, Vermont, is a corporation as charged in the indictment. (King v. Potnell, 2 East, 1059; Chadwick's Case, 2 Park. Cr.

<p>The inference of fraud cannot be drawn here in the first instance for the purpose of supporting a judgment, although there was evidence on the trial which would permit the inference, if there was also evidence which, if believed, would negative its existence, and the judgment did not proceed upon the ground of fraud, but upon grounds not tenable.</p> <p>Where, upon an application for life insurance, the application and answers to questions therein are made part of the contract, the answers become warranties, and a false one will avoid the contract, although the applicant, at the time of making it, believed it to be true.</p> <p>Mere knowledge of the agent of the company through whom the insurance was procured, at the time the application was made, that the answer was false, will not prevent the company from setting up the breach as a defense to an action upon the policy.</p> <p>It seems, however, where the agent himself, knowing the fact, fraudulently concealed from the applicant, who was not aware of it, that he had been rejected by another company to which he had applied through this same agent, and procured the applicant to make the application and to innocently state therein that he had not been rejected by any other company, that the breach of warranty may not be set up as a defense.</p> <p>Where, however, the breach was set up as a defense, and the trial court found that there was no breach of the warranty, although the uncontradicted evidence showed the making of the former application and its rejection, and where there was no finding of fraud on the part of the agent, and the evidence on this question was conflicting, held, that the inference of fraud could not be drawn here in the first instance for the purpose of supporting the judgment.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This action is in the nature of a penalty. (Laws of 1865, chap. 368, § 7; Hall v. Siegel, 53 N. Y. 607; Cartwright v. C. G. L. Co., 32 Hun, 403.) If the action is contract, it is necessary to bring an action against the corporation before bringing an action against the trustee. (Patterson v. W. M. Co., 40 Penn.

Appeal in the first above-entitled action, from order of the General Term of the Supreme Court in the first judicial department made November 13,1891, which affirmed an order of the Special Term appointing a receiver of the property of Levy Brothers & Co. and granting an injunction.

This was an action upon a promissory note. The facts, so far as material, are stated in the opinion. The note was diverted from the use to which it was restricted by defendant. He had a right to impose such a restriction and had an interest in having it observed. (Freund v. I. & T. N. Bank, 76 N. Y. 272; M. L. Ins. Co. v. Smith, 23 Hun, 535; Schepp v. Carpenter, 51 N. Y. 602.) The .plaintiff did not hold the note for a sufficient consideration.

This was an action to recover damages for injuries to property abutting on a street in the city of Hew York, alleged to have been caused by the building and maintenance of an elevated railroad through the same by defendant. The court found that plaintiff had sustained damages in the past, and that the value of his fee had been decreased by-defendants’ road. The facts, so far as material, are stated in the opinion.

<p>In an action by an abutting owner to restrain the operation of an elevated railroad in the street in front of his premises and for damages, defendants* counsel requested the court to charge that since the .year in which the road was constructed there had been a general rise in the value of the real estate situated upon the street, and that “this increase in value is largely attributable to the existence of the defendants' railroad;” this was refused. Held, no error; that conceding the facts stated in the ■request to have been established by uncontradicted evidence, they were immaterial if the evidence in the case was sufficient to warrant a finding that damage had been sustained by plaintiff in his property rights resulting from the construction and operation of the road.</p> <p>While in such an action the value of the easements taken must be measured by the effect which their appropriation has had upon the property to which they were appurtenant, and while if it appears that the abutting owner, although deprived of his easements, has been in fact benefited by the construction and operation of the road, he fails to sustain his allegation of damage, if the evidence justifies the inference that although the rental value of the abutting property has enhanced since the construction of the railroad, yet that the increase has not been as great as it would have been if the railroad had not been constructed, a trial tribunal is authorized to award compensation and to fix the amount thereof.</p> <p>In such an action plaintiff’s evidence showed that the portion of the street upon which plaintiff’s premises abutted and the side streets in the neighborhood had been more or less settled and built upon prior to the construction of defendants’ road; that they erected station-houses near, which with the tracks practically covered over the whole street in front of said premises, shutting off much of the light from the building thereon, that the stoppage and operation of trains caused annoyances and discomfort to the occupant, and that the rental value had been prejudicially affected by the operation of the road; that while the property ■on the street had increased in value since the construction of the road it was only by a small percentage, while property on the side streets and ’ upon the next street running parallel had nearly doubled in value, Heló-, that the evidence justified the trial court in drawing a conclusion •of damage and as to its amount, and with those conclusions this court could not interfere.</p>

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.

This action was brought to recover damages alleged to have been sustained by plaintiff by reason of an alleged unauthor ized purchase of stock by defendants, who were stock brokers. The facts, so far as material, are stated in the opinion. The plaintiff failed to-prove a cause of action, and the motion for nonsuit at the close of plaintiff’s case should have been granted. dSTo consideration for any secondary agreement was proven.

This was an action to enforce a liability under the Civil Damage Act (Chap. 646, Laws of 1873). It was brought by jhaintiff to recover damages for the death of her husband, alleged to have been caused by his own intoxication, which was produced by liquor sold to him by defendant McGovern on premises he leased from defendant Edward B. Germain as agent and manager of the owner, defendant James T. Germain. The facts, so far as material, are stated in the opinion.

the General Term of the Supreme Court in the first judicial department, made November 13, 1891, which affirmed an order made at Special Term denying the motion of James Blewitt, an alleged lunatic, to vacate and set aside a commission and proceedings in lunacy, and the appointment of a committee, on the ground that the alleged .lunatic had no notice of the proceedings and that they were •otherwise irregular.

Broderick, deceased, defendants’ testator. The claim was upon an undertaking executed by said Broderick as surety upon an appeal in an action for the foreclosure of a mortgage. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. It was error to dismiss' the appeal, because the order vacating the attachment was properly appealable to the General Term. (Yates v. North, 44 N. Y. 271; Achelis v. Kalman, 60 How. Pr. 491.) The amendment of the complaint was not a waiver of the appeal to the General Term. (Peart v. Peart, 48 Hun, 78; Van Alstyne v. Ermine, 18 N. Y. 33 ; H. F. Ins.

This was an action for the foreclosure of a mortgage. Plaintiff claimed that three of the defendants who had liens upon the premises prior to the mortgage, had subordinated their liens to it by accepting and executing a deed to them of the premises in and by which they assumed and agreed to pay the mortgage. They denied the execution or acceptance of the deed, claiming that their signatures thereto were forged.