Volume 132 — New York Reports

The nature of the action and the facts, so far as material, arc stated in the opinion. Plaintiff’s right to compensation depended upon the performance of the undertaking.

<p>The will of F., after legacies to the testator’s children anda gift to his wife “forever” of the residuary personalty, also a provision that in case the personalty was insufficient to pay said legacies enough real estate should, he sold for that purpose, contained this clause “ I also give, devise and bequeath to my wife Ellesheba all the rest and residue of my real estate, but on her decease the remainder thereof, if any, I give and devise to my said children or their heirs respectively, to be divided in equal shares between them.” In an action for the specific performance of a contract for the purchase of land which formed part of the residuary real estate,, title to which plaintiff claimed through the widow, 7¡cM, that she took only a life estate; but that by necessary implication a beneficial power was conferred upon her to dispose of the residuary real estate, with a. limitation over in case of her death without exercising the power; and, that, therefore, she could convey a good title.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made June 27, 1890, 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>This was an action to recover the expenses incurred in nursing and treating plaintiff’s infant daughter, who had been injured by the negligence of the defendant, and also to recover damages for the loss of her services.</p> <p>November 30, 1882, the plaintiff’s daughter, Mary, then aged eight years, was seriously injured by the negligence and inefficiency of a servant of the defendant. In an action brought by her, through her guardian ad litem, she recovered a judgment against the defendant for the sum of $4,500, being the damages thus sustained by her, which was affirmed by this court. (115 N. Y. 638.)</p> <p>The complaint of the father was in the usual form, except that the recovery of said judgment was set forth in a paragraph by itself. The defendant denied most of the allegations contained in the complaint and alleged that the accident resulting in said injuries was caused by the negligence of the said Mary. The jury rendered a verdict in favor of the plaintiff for fifteen hundred dollars.</p> <p>Further facts appear in the opinion.</p> <p>The damages Were excessive. (Cumming v. B. C. R. R. Co., 109 N. Y. 95; Lehman v. City of Brooklyn, 29 Barb. 234; Kennedy v. N. Y. C. & H. R. R. R. Co., 35 Hun, 186.)</p> <p>Ho error was committed in the admission of the judgment-roll in the guardian’s action, and allowing plaintiff to read in evidence that part of the complaint therein which set forth the injuries sustained by plaintiff’s child, and the defendant’s exception should not be sustained. (Anderson v. Third Ave. R. R. Co., 9 Daly, 487; Simmons v. Tappen, 2 Sweeny, 652; Alexander v. Stokely, 7 S. & R. 299, 302; Green v. Clark, 5 Den. 497; Edwards v. Stewart, 15 Barb. 67; Crosby v. Day, 81 N. Y. 242; Bennett v. Austin, 5 Hun, 536.) Ho error was committed in allowing the plaintiff to prove the expense actually incurred by him for medicines in the cure of his child ; such damage had been alleged in complaint. (115 N. Y. 638; Cumming v. R. R. Co., 109 N. Y. 95; Orbann v. P. T. Co., 11 Cent. Rep. 628; Crook v. Rindskopf, 104 N. Y. 476.) Defendant’s objection that plaintiff could not recover for what he lost, by being obliged to give up his situation as a theatrical manager and also for his services while nursing his child for same period, is untenable. (Lockwood v. R. R. Co., 98 N. Y. 523; Bowles v. R. R. Co., 46 Hun, 327; Houghkirk v. Canal Co., 92 N. Y. 219; Cook v. R. R. Co., 60 Cal. 604.) There was no error in the court’s charge, and the exception thereto Was too vague and indefinite. (Distin v. Rose, 69 N. Y. 122; McGinley v. Life Ins. Co., 77 id. 497; Schule v. Brokhans, 80 id. 614.) Ho error was commited in the court denying the motion for a new trial. (Peck v. R. R. Co., 70 N. Y. 587; Leitehult v. Treadwell, 74 id. 418; Hayes v. Ball, 72 id. 418; Bowles v. R. R. Co., 46 Hun, 324; R. R. Co. v. Falvey, 1 West. Rep. 881; Wolfe v. Trinkle, Id. 497; F. B. Church v. R. R. Co., 5 Cent. Rep. 434; State v. Gonce, 3 West. Rep. 805.)</p>

<p>While in some cases the Court of Appeals may assume the existence of a fact in order to affirm a judgment, this cannot be done when the evidence in regard to it is conflicting and the trial court has not been requested to determine the fact either way.</p> <p>By a building contract," the contractor agreed “ to put in a sewer ” to connect the houses to be erected with another sewer, and to make water connections. At the time of filing a mechanics’ lien, there was nothing due under the contract, and all the payments called for by it had been made, except a sum due when the contract was completed. The contractor substantially performed the contract in other respects, but omitted to put in the sewer or to make the water connections, and the owner, after notice to the contractor, completed the work in these respects at an expense of $180. The whole contract price was $2,850. The owner had paid $2,020. There was no provision in the contract that the owner ¡should complete the work in case the contractor failed to do so, or any understanding that the former should proceed with the work, or any failure on his part to perform his obligations under the contract. In an action to foreclose the lien the court adjudged plaintiff to be entitled toa lien for the difference between the balance unpaid on the contract and the sum expended by the owner to complete it. Held, error; that plaintiffs’ right to recover depended upon the performance of the contract by the contractor; and that there was not a substantial performance by him.</p>

<p>In an action to recover damages for the alleged unlawful taking and conversion of certain goods it appeared that prior to the execution of an assignment for the benefit of creditors, the defendant, as sheriff had, under two executions against the assignors, levied upon their goods, and a subsequent sale of part of them, after payment of the execution left a surplus. Subsequent to the assignment and while the goods unsold remained in defendant’s possession, other executions came into his hands under which he claimed the right to sell a sufficient quantity of the goods remaining to satisfy said executions; the assignee without admitting the defendant’s claim, in order to obtain possession of the goods, made an arrangement with the sheriff in pursuance of which he paid to the latter under protest a sum sufficient, with the surplus in his hands, to make up the amount of the other executions, and defendant thereupon released his levy. Held, that the proof failed to sustain the allegations of unlawful taking, and there was no unlawful conversion of the,surplus; that the arrangement operated to discharge any cause of action for conversion and to substitute in its stead one for money had and received.</p> <p>At the close of plaintiff’s case, his counsel asked the court to allow the complaint to be amended so as to conform to the facts proved. This vros objected to and refused. Held, no error; as the effect of the amendment would be to allow a recovery upon an entirely different cause of action and this may not be done against an objection.</p> <p>After the court had decided to dismiss the complaint, plaintiff’s counsel asked the court to be permitted to withdraw a juror, in order to make a motion at Special Term to amend the complaint, which was denied. Held, no error; that it was discretionary with the court and tire manner of its exercise would not be reviewed in this court.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. By no rule of legal •construction can Grace S. Marsh be deemed to be a residuary legatee under the third item of said will, entitled to share in any part of testator’s residuary estate, or 'to be paid any preferential sum from any substituted fund, on account of such residuary share.

In July, 1886, the plaintiffs loaned to the defendant $2,400. At the time the application ivas made for the loan, the defendant had recently imported from Ireland a quantity of wet salted calf skins, which were then on board a vessel in Hew York harbor. He offered them as collateral security.

This action was brought to set aside a compromise settlement and a cancellation of a policy of insurance against fire and a release thereof, and to recover upon the policy. The policy insured the plaintiff to the amount of $875 on Buildings and $225 on personal property.

This action was brought to recover damages for the conversion of certain machinery, to which plaintiff claimed title under a, chattel mortgage executed by Joseph Gandolfo to the-plaintiff Robert Deeley to secure the purchase-price. Defendants, who were partners, claimed as purchasers from Gandolfo. for value and in good faith. In the autumn of 1883, Joseph Gandolfo contracted to sell machineiy to be manufactured and thereafter delivered to, the defendants for $5,666.

The nature of the action and the facts, so far as material, .■are stated in the opinion. The plaintiff is not entitled to recover upon the instrument signed by the defendant at the •comptroller’s office on November 2, 1888. (Presbyterian Church v. Cooper, 112 N. Y. 517; T. T. S. B. Church v. Cornell, 117 id. 601; Sweetman v. Prince, 62 Barb. 256; Clark v. Richards, 3 E. D. Smith, 89; Rogers v. Murray, 3 Bosw. 357; Wilkie v. Roosevelt, 3 Johns. Cas. 210; Bunten v. Ins.

. The action was ejectment for the recovery of premises in the town of Southfield, on the southerly side of Staten Island,, described in the complaint, alleged to contain 8T^„- acres, consisting of a salt meadow and the beach and shore in front thereof, lying next the waters of the lower bay of ¡New York. The answer contained a general denial, alleged title in the defendants by adverse possession, and that the plaintiff’s alleged title was void for champerty.

The facts, so far as material, are stated in the opinion. The Supreme Court erred in supposing that the conveyance to Noble was thereby rendered a nullity as against Mrs. Aldrich. She having purchased the land in question in good faith and without notice of any claim on the part of Paine or his heirs that the transaction whereby he parted with the land had been inequitable, her title was unaffected by such claim. (Bumpus v. Platner, 1 Johns.

This action was brought to recover for injuries alleged to have been sustained by the plaintiff upon a voyage from Glasgow to New York on the steamer “State of Georgia,” being the result of taking a dose of calomel which was furnished to her by the physician on board said steamer in response to a request for five grains of “ quinine.” The material facts appear in the opinion.

The complaint alleged that plaintiff was in possession of real property under a claim of title by deed from her deceased husband and that defendants claimed the land as heirs at law of her husband. It demanded a judgment barring said defendants from any estate in said property, and that plaintiff’s title be quieted and adjudged to be free from any right therein of the defendants.

<p>While at law the stipulated time of performance of a contract for the sale of land is of the essence of the contract it is not essentially so in equity, and when the situation of the parties and the property remains unchanged relief may be granted.</p> <p>Reasonable diligence, in performance however, is requisite to such relief where there is no acquiescence in the delay.</p> <p>When, by the terms of such a contract the time for the performance is not of the essence thereof, it may be made so by reasonable notice by either party, to the other, and the party giving the notice may then avail himself of the forfeiture on default.</p> <p>The parties hereto entered into a contract for the sale by defendants and the purchase by plaintiff of certain premises, by the terms of which plaintiff agreed to pay a specified portion of the purchase-price by taking the premises subject to a mortgage thereon for an amount specified, “having five years to run from November, 1886.” The mortgage, in fact, matured in three years from that time. Three days before the time fixed in the contract for its performance plaintiff notified defendants of the mistake in the time of payment of the mortgage, of which fact, until such notice, they were ignorant, and also notified them that he would not accept a deed ufiless defendants procured at the time fixed for passing title a proper and sufficient extension of the mortgage, so as to conform to the contract. Defendants lived in New York; the owner of the mortgage in Philadelphia. When the parties met at the time stipulated defendants had not procured the extension, they tendered a deed and also ample security against any possible damage by reason of the mistake, which plaintiff refused. Defendants then asked for an extension of the time of performance for a week or ten days to enable them to procure an extension of time of payment of the mortgage; this also, plaintiff refused. Eight days after the meeting such an extension was procured and tendered by defendants to plaintiff, with expenses of recording and the deed. Plaintiff refused to accept; he had on the same day, prior to the tender, commenced this action to recover back the payment made by him on execution of the contract and expenses. The testimony was conflicting, as to whether defendants during the three days between the time of notice of the mistake and that for performance, made any efforts to procure the extension. Plaintiff’s evidence was to the effect that when so notified, defendants said they would not apply for an extension. The evidence showed and the court found that plaintiff, at the time of executing the contract, made special inquiries as to the time when the mortgage would mature, and relied upon the representation in the contract; also, that five days after the time fixed for performance he purchased other premises. Held, that plaintiff was not required to accept the security offered in lieu of performance; that the question as to whether the three days was a sufficient or reasonable time in which to obtain the extension, and as to whether defendants had used due diligence to procure it in that time were questions of fact; and that the evidence justified a finding that defendants were not entitled to relief from their default. Reported below, 26 J. & S. 570.</p>

This was an action to redeem certain premises in the city of Brooklyn from a mortgage.

This was an action to recover back moneys paid by plaintiff under a contract for the purchase by him of defendant of certain real estate on the ground of defect of title. The judgment denied the relief sought and directed specific performance on the part of plaintiff. The facts, so far as material, are stated in the opinion.

in the first judicial department, entered upon an order made March 14, 1890, which affirmed a judgment disallowing a claim against the estate of Oscar Strasburger, a lunatic, for damages to the claimants caused by their being dispossessed of premises leased to them by the lunatic. Oscar Strasburger was adjudged a lunatic prior to September 17, 1884.

This was an action upon a policy of insurance against fire issued to the plaintiff as “ trustee.” The firm of Daniels & Mack were originally the owners of the insured property. The firm being insolvent made a general assignment to John E. Pound, and subsequently having been adjudicated bankrupts, John T. Joyce was made the assignee in bankruptcy of the individual members of the firm.

This was an action to recover for the loss of a cargo of cement underwritten by defendant. April 26, 1886, the defendant issued to Sherman Petrie an open uniform canal cargo policy, by which it undertook to “ insure the several persons whose names are hereafter indorsed hereon as owner, advancer or common carrier on goods *• * * on hjg own boat, or boats belonging to others, loaded on commission or chartered.

<p>While the Hudson river is a highway for the passage of vessels, that portion of it which is embraced within the boundaries of a city is not one of its highways, so as to burden it with the duty of removing obstructions and keeping it safe for navigation.</p> <p>While the state may undertake, at its own expense, to remove obstructions in, and improve the condition of navigable waters; and may impose this burden upon a city or county more immediately and beneficially interested therein than other portions of the state, in order to charge a municipality with this duty, the legislative intent so to do it must appear from the act relied upon as imposing the duty.</p> <p>By various statutes in relation to the city of Albany, it is made lawful for the common council “ to make by-laws and inflict reasonable penalties to enforce the same, for regulating and keeping in repair the docks and slips within the city, and to prevent the same and the river opposite thereto from being in any manner obstructed ” (§ 19, chap. 153, Laws of 1801), and that body is constituted and declared commissioners of higliAvays with power to pass ordinances, among other things, “to prevent all obstructions in the river near or opposite ” the city wharves or docks. (§ 15, chap. 185, Laws of 1826.) The coinmon council of the city passed an ordinance declaring that whenever any vessel is sunk at any dock or anywhere in the Hudson river opposite the city, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner to remove it, and if the notice is not complied Avith, making it lawful for that officer to take possession of the vessel, remove and sell it, etc. Plaintiff’s complaint alleged in substance that lie was the owner <of a dock in that city; that a loaded canal boat sank at the dock, obstructing its use; that a written notice thereof was served on the mayor, who gave written directions to the street commissioner to remove it; that officer notified the owner, but declined to remove it himself, or to do anything more in the matter, whereupon plaintiff caused the boat to be removed. Plaintiff asked to recover the expenses of such- removal and his damages. Upon demurrer to the complaint, held, that assuming said statutory provisions were not repealed by the amended charter of 1883 (Chap. 398, Laws of 1888), which in prescribing the powers to pass ■ordinances, omits all mention of the river opposite the city, the complaint failed to state a cause of action; that as no duty in reference to the matter was imposed upon the city by the statute, no liability existed: (1) As by the said charter of 1883 (§ 44, tit. 3) it is provided that 'the city shall not be liable for a failure to enforce any ordinance; (3) As the statutes prescribe that the city shall provide for the enforcement of its ordinances by fines and penalties, and so, that portion of said ordinance which authorized the sale of the vessel, or'its loading, thus creating a forfeiture, was invalid.</p>

Starr. The nature of the action and the facts, so far as material,, are stated in the opinion.

This action was brought to recover damages for personal injuries received by plaintiff through the alleged negligence-of defendant. The facts, so far as material, are stated in the opinion. The verdict of the jury was contrary to the law upon the question of contributory negligence, and should have been set aside upon the motion for a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiffs had a right to rely upon the representations made, and to assume that the defendant knew of the formation of the bottom of the slip. They were not required to make a personal examination, but were entitled to a reasonably safe place.

The action was brought to set aside the assignment of the defendant James White for the benefit of his creditors, to the defendant Charles Wise, as fraudulent against such creditors. The assignor was engaged in the business of manufacturing shoes in the city of Brooklyn. He made the assignment April 22, 1886. The plaintiffs, then being creditors, afterwards in May, June and July following, recovered judgments against him, and on July fourteenth commenced this action.

This was an action for libel. The facts, so far as material, are stated in the opinion. The jury were not properly instructed on the question of damages. The court erred in refusing to charge the jury that -in the absence of actual malice on the part of the defendant they could not award damages for injured feelings, or mental or bodily suffering.

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged contract and cause of action -arose in the state of Pennsylvania, and related wholly to real estate situated therein. The questions at issue-are, therefore, governed by the laws of Pennsylvania. (Johnson v. Hulings, 103 Penn.

On July 21, 1881, the parties to this action entered into the following agreement: “ For the purpose of forming a. syndicate to purchase the ‘John’ and ‘Forrest’ lodes located in San Juan county, state of Colorado, and ultimately form a company to develope the same, we, George W. McIntyre and Luther II.

This action was brought to recover damages for alleged negligence. The facts, so far as material, are stated in the opinion. The referee adopted an erroneous rule as to the measure of damages. The rule as to the measure of damages when an injury is done to the inheritance is the difference in its value before and after the injury or trespass.

This action was brought to recover the sum of $105.26, the alleged purchase-price of certain goods claimed to have been sold by plaintiff to defendant, upon the promise of the latter to pay said amount to the Citizens’ Insurance Company of Mobile, provided it should not suspend business or go into liquidation, or become insolvent within sixty days, and if either of those events happened, upon the further promise to pay said sum to the plaintiff.

This was a special proceeding for the dissolution of a corporation organized August 21, 1883, pursuant to chapter 228 of the Laws of 1811, under the corporate name of the “Importers and Grocers’… Held: ex officio, by each of the fifteen trustees, and upon the expiration of his term of office, passing under the by-laws to his successor.

The nature of the action and the facts, so far as material, are stated in the opinion. Trees upon a country highway do not constitute an obstruction which it is the duty of the commissioners to remove. (Laws of 1869, chap. 322; Laws of 1888, chap. 196.) A different rule prevails in reference to objects which have become familiarized to the public by universal custom and acquiescence from that which ■applies to unusual, unforeseen and unexpected objects.

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, who were engaged in the construction of a double-track elevated railway on Broadway in the city of Brooklyn.

The nature of the action and the facts, so far as material, are stated in the opinion. Where a person using a laid out highway occasionally passes over the land adjoining it, that is not such a use as would make the adjoining land a highway. (Rozell v. Andrews, 103 N. Y. 150.) There is no evidence in the case sufficient to establish that the premises in question had become a - highway by user.

Common Pleas for the city and county of New York, entered upon an order made February 10,1890, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court. This action was brought against defendants as directors of the New York Lumber Auction Company (Limited) to recover an indebtedness of the company because of failure on their part to tile an annual report. The -material facts are stated in the opinion.

<p>A cemetery was formerly owned by eleven persons as tenants in common; eight of them executed a power of attorney to G. and M. to sell and convey lots therein. M. did not act. G. undertook the execution of the power and continued to sell lots until he became disabled. Thereafter B. acted as attorney. In an action of ejectment to recover a lot in the cemetery, plaintiff claimed title under a sale in an action for partition between the original owners or their successors in title. Defendant claimed the lot by virtue of a purchase from. G., and payment of part of the purchase-price to B., with agreement to pay the balance when the deed, was delivered. It appeared that B. acted as attorney for a number of years, collecting money and paying the liabilities of the owner, and kept a book in which sales of lots were entered, in which was entered the sale of the lot to defendant. Defendant, immediately after his purchase, took possession of the lot, improved, graded and sodded it, buried seven persons therein and had been in possession for over twenty years. Ho deed was ever tendered to him. Held, that a verdict was properly directed for defendant; that while no express authority for B. to act as attorney was shown, the fact that he did so with the knowledge and consent of the owners necessarily raised the inference of authority, and defendant, therefore, was rightfully in possession, and if the contract for the purchase was to be considered as executory, he was entitled to possession until the production and delivery to him of a deed; if not executory, he having entered under claim of title, acquired title by adverse possession.</p>

This action was brought to obtain an accounting and recover compensation for communicating to defendant a new system for soliciting life insurance, which plaintiff alleged, after a confidential disclosure thereof by him in a letter requesting employment, was adopted by defendant and used without his knowledge, and the use was continued, notwithstanding his protests, after discovery of its use, whereby defendant obtained a large amount of business.

The nature of the action and the facts, so far as material, are stated in the opinion. The motion to dismiss was on two grounds,-one that there had been1 a surrender and acceptance, and the other was that on the facts as proven, plaintiff could not recover rent as such. This should have been granted.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 12, 1890, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Upon an appeal from a judgment dismissing the complaint, the evidence is to ibe construed most favorably to the plaintiff. (Harris v. Perry, 89 N. Y. 308; Clemence v. City of Auburn, 66 id. 338.) The defendant was guilty of negligence in failing to use proper care to provide a safe and suitable lioolc for the work Xvhich the plaintiff was called upon to perform. (McGovern v. C. V. R. R. Co., 123 N. Y. 287; Pantzar v. T. F. I. M. Co., 99 id. 368.) The negligence of the defendant’s blacksmith arose in the performance of a duty belonging to the 'defendant to perform as master, hence the defendant is liable 'for the manner of its performance. (Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 379; Mann v. D. & H. G. Co., 91 id. 495; Durkin v. Sharp, 88 id. 227; Fuller v. Jewett, 80 id. 46; Booth v. B. & A. R. R. Co., 73 id. 38; Pantzar v. T. F. I. M. Co., 99 id. 368; Leonard v. Collins, 70 id. 90.) íhe General Term erred in holding that the defendant was hot required to adopt any precaution in making the hook so •long, as the best iron was purchased for the purpose. (McGovern v. C. V. R. R. Co., 123 N. Y. 289.) The General Term erred in holding that the testimony of defendant’s superintendant, that he purchased the best iron is controlling. (C. N. Bank v. Diefendorf, 123 N. Y. 200; Elwood v. W. U. T. Co., 45 id. 49; Kavanagh v. Wilson, 70 id. 172; Gildersleeve v. Landon, 73 id. 609; Koehler v. Adler, 78 id. 201; Wohlfahrt v. Beckert, 92 id. 497.) The question of contributory negligence was, under all the circumstances, one of fact for 'the jury. (Stackus v. N. Y. C. R. R. Co., 79 N. Y. 464; Plank v. N. Y. C. R. R. Co., 60 id. 607; Bassett v. Fish, 75 id. 307; Kain v. Smith, 89 id, 379.) The plaintiff did not assume the risk of the accident by which he was injured. (Bening v. Steinway, 101 N. Y. 551; Stringham v. Stewart, 100 id. 526.)</p> <p>The inference of negligence cannot fairly and properly be drawn against the defendant. (Burke v. Witherbee, 98 N. Y. 565.) The blacksmith’s failure to cut the iron when it was cold was not, under the circumstances, negligence. (Probst v. Delamater, 100 N. Y. 266; W. R. Co. v. McDaniels, 107 U. S. 454; Wright v. N. Y. C. R. R. Co., 25 N. Y. 566; Baulec v. N. Y. & H. R. R. Co., 59 id. 366; Dwight v. G. L. Ins. Co., 103 id. 358.)</p>

This was an action to recover the purchase-price received by defendant for certain lots in the city of Buffalo. On September 1, 1883, Henry Box held the legal title to certain lots of land in Buffalo, but in fact, and as conceded by him, as security for the indebtedness of Jos. Boric to him in the sum of $4,000. Jos.

This was an action to compel the assignment of a bond and mortgage and to restrain defendant from prosecuting an action to foreclose the same.

The action was brought to recover damages for the alleged diversion of the waters of a stream. The plaintiff owned two lots, both upon the left bank of the Matteawan creek, extending to the middle of the stream and separated by an intervening lot of a third person. The defendants owned lands upon the right bank, opposite the plaintiff’s lands, and extending up the creek above them.

August 2, 1886, the defendant insured the canal boat “ Mary Y. Keenan,” for one year from that date under a uniform canal hull policy, valued for $1,200, against the “ perils * - * of the inland lakes, rivers, canals, and fires that shall come to the damage of the said vessel, or any part thereof.

X-pueat, from judgment of the General Term of the Court «September 27,1888, the litigants entered into a written lease ¡by which the plaintiff let to the defendant- an unfurnished dwelling, known as 334 West Fifty-eighth street, in the city of New York, for one year from October 15, 1888, for $1,800, payable $150 October 15,1888, and a like sum on the fifteenth day of each succeeding month.

This was an action of ejectment, brought to recover certain premises situated in the city of Brooklyn. The premises were conveyed to Sarah Ann Wood in May, 1846. She was then the widow of one Wood, who died in or about the year 1836. She married George G. Ackley July 8, 1846.

The nature of the action and the facts, so far as material, are stated in the opinion. . The taxes for the years in question were originally invalid and void. (Van Rensselaer v. Whitbeck, 7 N. Y. 517; Brevoort v. City of Brooklyn, 89 id. 128; Hillton v. Fonda, 86 id. 346; Stewart v. Crysler, 100 id. 378, 383.) No interest had accrued on the taxes prior to the enactment of chapter 383 of the Laws of 1882 and the act of 1886 (Chap. 656).

This action was to foreclose a mortgage given by the defendant Doxstater to the plaintiff upon three parcels of land June 18, 1888, and recorded • April 8, 1889.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 9, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also 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 certificate of the physicians given in evidence concludes the plaintiff. (B. L. T. & S. D. Co. v. K.T. & M. M. A. Assn., 126 N. Y. 450; Ins. Co. v. Newton, 22 Wall. 22.) It was error to strike out on plaintiff’s motion the testimony of physicians that they had ■“ treated ” Helwig professionally subsequent, to 1881. (Code Civ. Pro. § 834; Heath v. B. & S. A. R. R. Co., 25 J. & S. 496; Henry v. N. Y., L. E., etc., R. R. Co., 10 N. Y. Supp. 508; Cary v. White, 59 N. Y. 336; Steele v. Ward, 30 Hun, 560; Eddington v. E. L. Ins. Co., 77 N. Y. 564, 571; People v. Schuyler, 106 id. 298, 305; B. L. T. & S. D. Co. v. K. T. & M. M. A. Assn., 126 id. 45.) It was fatal error in the court to charge that “ nothing could be inferred from the testimony of the physicians alone further than the fact that they did not visit him; and the fact that he was suffering from a disease for which they attended him, cannot be drawn as a conclusion from their testimony. You must be satisfied from the other testimony in the case that such was the fact before you find the fact. And if you are not satisfied, your verdict should be for the plaintiff.” (Holt v. Holt, 112 N. Y. 515; Numrich v. Supreme Lodge, 3 N. Y. Supp. 553.)</p> <p>Under the Code of Civil Procedure (§ 834) a person duly authorized to practice medicine is prohibited from disclosing any information acquired by him while attending a person in a professional capacity. (Westover Case, 99 N. Y. 56; Grattan Case, 80 id. 297.) The question whether there was a breach of warranty in that the thirtieth and thirty-first questions in the application were answered untruthfully was a question for the jury. (Dilleber Case, 69 N. Y. 263; Cushman Case, 70 id. 72; Bancroft Case, 120 id. 14; Edgington v. M. L. Ins. Co., 67 id. 185.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. This action was not brought “ within one year from the time of the alleged accidental injury,” as required in the contract made by the parties, and, therefore, as it is not pretended or claimed that appellant did or omitted anything upon which a waiver of this condition could be predicated, the judgment appealed from cannot be sustained. (King v. W. F. Ins.

Appeals from judgments of the General Term of the Supreme Court in the first judicial department, each of which was entered upon an order made July 18,1890, which affirmed •a judgment in favor of defendants entered upon an order non-suiting plaintiffs on trial at Circuit, and also affirmed an order denying motions for a new trial. The nature of the actions and the facts, so far as material, are stated in the opinion.

The facts are sufficiently stated in the opinion. The elevated bridge and the -draw bridge were built and maintained by claimant under a valid agreement with the officers of the state, the state deriving benefit from it by using the. same for the discharge of water from the canal through claimant’s waste wier and also through the use of the same by boatmen navigating the canal in the repairing of boats, and the building of the permanent bridge before the opening of…

The relief sought by this action was that the defendant be restrained from removing an engine from certain premises which the plaintiff had, by lease of date March 26, 1886, demised to the Fox Changeable Button Company for the term of five years and six months from the first of the then-following April.

<p>Where the owner of lands in a city has laid it out into lots, which are sold to different purchasers, each conveyance containing covenants on the part of the grantee running with the land restricting the use thereof to the purposes of a private residence, or prohibiting the erection thereon of certain specified structures, while a court of equity has power to enforce the performance of these covenants,the exercise of this authority is within its discretion, and where there has been such a change in the character of the neighborhood as to defeat the objects and purposes of the covenants and to render it inequitable to deprive a grantee or his successors in title of the privilege of conforming his property to that character, such relief will not be granted, and in lieu thereof damages may be allowed.</p> <p>One B. owned a block of land in the city of New York, which he divided into lots for private residences and conveyed to different parties by deeds, each of which contained a covenant on the part of the grantee, his heirs and assigns, not at any time thereafter to erect, suffer or permit upon the premises conveyed any tenement-house, which covenant it was agreed should run with the land. In an action against one, who through various mesne conveyances, all of which contained said restriction, had became the owner of a lot in said block, brought by the owner of another lot, used as a private residence, to restrain a violation of the covenant, it was proved that the entire surrounding neighborhood had been mostly built up with flats or tenement-houses; that the tenement-house defendant was building was a large one, and he had expended large sums thereon. The trial court refused a permanent injunction, but fixed the permanent damages, i. e., the difference in value of plaintiff’s premises with and without defendant’s tenement building, and awarded an injunction restraining the defendant from renting her building to any tenant until such damages and the costs were paid. Held, no error; that the court in awarding damages was not confined to those sustained before the commencement of the action.</p> <p>Pond v. M. B. R. Co. (113 N. Y. 186); TJline v. N. T. G. cfc S. R. R. R. Go. (101 id. 98), distinguished.</p> <p>But held, that the trial court might properly and should have required plaintiff, upon receipt of the damages awarded, to execute to defendant a release of the covenant.</p>

This was an action for money had and received. In April, 1888, the sheriff of the city and county of New York received the sum of $900 “by reason of” the levy of an attachment which the plaintiffs had caused to be issued in an action brought by them against one Bernharth and others.

This was an action to recover the balance remaining unpaid of the purchase-price of a farm sold by plaintiff to defendant. The facts, so far as material, are stated in the prevailing opinion. The allegation in the answer is one of active fraud against the plaintiff and of ignorance on the part of the defendant.

This was an action upon a certificate of insurance issued by defendant upon the life of George Ronald, deceased. The facts, so far as material, are stated in the opinion. The defendant couhl waive the forfeiture of Ronald’s policy. (Titus v. G. F. Ins, Co., 81 N. Y. 419;Roby v. Ins. Co., 120 id. 510; Johnson v. S. M. L. Ins. Co., 79 Ky. 404; A. M. A. Society v. Quire, 8 Ky.

This action was brought to recover damages for personal injuries suffered by the plaintiff, occasioned by being thrown from the carriage in which she was riding with her husband ©n a highway in the county of Cayuga, on October 10, 1886. This was caused by the act of one Edward Shaw who, in driving a horse hitched to a buggy and going in the same direction, recklessly drove against the carriage conveying the plaintiff, overturning it, causing serious injury to her.

This action was brought for the specific performance of a contract made by the parties February 16, 1888, for the sale by the defendant to the plaintiff of a lot in the city of New York for the price of $24,900 by full covenant deed to be delivered April 15, 1888, conveying to plaintiff title in fee simple free from incumbrances, except as to outstanding tenancies and a mortgage, not here material.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made the second Monday of September, 1890, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Circuit without a jury.</p> <p>This action was brought to set aside as fraudulent and void .an assignment for the benefit of creditors, executed by Frederick S. Yan Wagonen to one Jacob D. Yan Wagonen, and for an accounting and the appointing of a receiver:</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The provisions of the statute of 18'S8 are mandatory, and the assignment, not complying with them, is void. (Fairchild v. Gwynne, 16 Abb. Pr. 23; Hardman v. Bowen, 39 N. Y. 196; Britton v. Lorenz, 45 id. 51; Rennie v. Bean, 24 Hun, 123; Schwarts v. Soutter, 41 id. 323; Bloomingdale v. Seligman, 22 Abb. [N. C.] 98; 19 N. Y. S. R. 64; Irving v. Campbell, 121 N. Y. 353, 359, 360, 361; Cooley on Const. Lim. 88, 92, 93; Taggart v. Herrick, 55 Hun, 569; Taggart v. Sisson, 29 N. Y. S. R. 424; Mullen v. Sisson, 31 id. 210; Strickland v. Larraway, 29 id. 873-877; Boak v. Blair, 32 id. 911; Richardson v. Herron, 39 Hun, 537; Johnson v. Kelly, 43 id. 379.)</p> <p>The assignment is valid. (Laws of 1888, chap. 294; Bloomingdale v. Seligman, 19 N. Y. S. R. 64; Taggart v. Herrick, 55 Hun, 570; Book v. Blair, 32 N. Y. S. E. 911.) The amendment is directory and not mandatory. (Laws of 1888, chap. 294; 4 R. S. [8th ed.] 2536; Hooper v. Baillie, 118 N. Y. 413; Klump v. Gardner, 114 id. 153; Adee v. Cornell, 93 id. 572; Klumpf v. Gardin, 15 N. Y. S. R. 100; Warner v. Jaffray, 96 N. Y. 248; Nicoll v. Spowers, 105 id. 1; Richardson v. Thurber, 104 id. 606; Franey v. Smith, 125 id. 44; Camp v. Buxton, 34 Him, 511; Pratt v. Stevens, 94 N. Y. 387; Thrasher v. Bentley, 59 id. 650.) The instrument in question should be made available rather than be suffered to fail. (2 R. S. 740, §2; Crossing v. Scudamore, 1 Vertr. 141; Franey v. Smith, 125 N. Y. 44; Scott v. Mills, 115 id. 376; 1 Kent’s Comm. 463; White v. Wager, 32 Barb. 250; Donaldson v. Wood, 22 Wend. 395.) An assignment should be upheld if the language permit, rather than be defeated, and fraud is not presumed unless fairly inferable. (Bingham v. Tilinghast, 15 Barb. 618; Townsend v. Stearns, 32 N. Y. 209, 213; Benedict v. Huntington, 32 id. 219, 224; Bogart v. Haight, 9 Paige, 297; Mann v. Whitbeck, 17 Barb. 388; Sherman v. Elder, 24 N. Y. 381; Kellogg v. Slauson, 11 id. 302; Platt v. Lott, 17 id. 478; Bank of Silver Creek v. Talcott, 22 Barb. 550; Brainerd v. Dunning, 30 N. Y. 211; Read v. Worthington, 9 Bosw. 617, 630; Grove v. Wakeman, 11 Wend. 187; Coyne v. Weaver, 84 id. 386; Bishop on Insol. Debtors, 183, 184.) A statute made in the affirmative, without any negative words expressed or implied, does not take away the common or existing statute law. (People v. Allen, 6 Wend. 487, 488; People v. Pecvk, 11 id. 604; Gale v. Mead, 2 Den. 160; Witherell v. Mosher, 9 Hun, 412; People ex rel. v. Seaton, 25 id. 305; Douglass v. Haberstraw, 88 N. Y. 618; People v. Fitzgerald, 37 id. 413; Kennedy v. People, 39 id. 245; Cox v. People, 80 id. 500; People v. Conroy, 97 id. 92; People v. Willett, 102 id. 251; People v. Giblin, 115 id. 196; Delafield v. Brady, 108 id. 524; Laws of 1877, chap. 466; Laws of 1878, chap. 318, § 1.) The spirit of the common law for centuries has been hostile to the narrow technical and strict construction contended for by the plaintiff. (3 Black. Comm. 407 ; Steph. Pl. 97; 2 R. S. 424, § 7; Code Pro. §§ 174-176; Code Civ. Pro. §§ 721-724.)</p>

The facts, so far as material, are stated in the opinion. The special surrogate of Oneida county had no jurisdiction or power to grant the injunction order in this case, and being without jurisdiction the order was absolutely void. (Const. N. Y. art. 6, § 16; Code Civ.

This action, ejectment, was begun July 11, 1882, to recover in fee the land hereinafter described. The defendants, by their answers, deny that the plaintiffs have title, but they do not allege that they or either of them have title to the land in dispute.

This was an action of ejectment begun July 11, 1882, to recover in fee the land hereinafter described. The defendants, by their answers, deny that the plaintiffs have title, bnt they do not allege that they or either of them have title to the land in dispute. The facts, so far as material, are stated in the opinion.

This was an action brought by plaintiff, as assignee of John Brady, to recover upon a contract made by the assignor with defendant for regulating and grading Ninety-fifth Street in the city of New York, from Tenth avenue to Riverside Drive. The facts, so far as material, are stated in the opinion. Complete performance of the work specified in the contract is an imperative condition precedent to the right to payment.

judgment entered upon the decision of the court on trial at special term. This action was brought to restrain the defendant from so obstructing the waters of Allen’s creek, in the town of Wheatland, county of Monroe, as to cause them to set back upon the lands of the plaintiff. The trial court found that Allen’s creek is a natural stream of water flowing in an easterly direction across lot 37 to lot 38, and thence across lot 43 in said town.

This was an action to recover damages from the defendant for unlawfully severing the connection between its railroad track and that of the plaintiff at the village of Port Jervis; to-compel the defendant to restore such connection and to restrain further interference therewith.

The purpose of the action was to relieve the plaintiff from a contract for the purchase of certain premises in the city of New York, designated as lots Nos. 430, 432, 434, on West 34th street, and to recover ten per cent of the purchase-money paid, also certain charges for auctioneer’s and salesroom fees, and expenses for examining the title, upon the alleged ground that 'the defendants were unable to give a good title.

This was an action by a lessor against the receiver of the estate of a deceased' lessee to recover the rent reserved and certain taxes, which, by the terms of the lease, were to be paid by the tenant. By a lease dated February 15, 1871, the trustee of one Clement Moore demised to John H. McCunn certain lands in 'the city of Hew York for the term of twenty-one years, reserving an annual rent of $250, payable in semi-annual payments on the first days of March and September.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence of George D. Lord was incompetent and was properly excluded. (Code Civ. Pro. § 829; Smith v. Hathorn, 25 Hun, 159; Weed v. Hornby, 35 id. 580; Geissmann v. Wolf, 46 id. 289; Church v. Howard, 79 N. Y. 415; Holcomb v. Holcomb, 95 id. 316.) This is not a case where a severance of the action could be had under section 456 of the Code or ordered under section 1205.

The plaintiff alleged in his complaint that, on the 1st of September, 1887, the defendants, “ not haying any just or probable cause of action against the plaintiff, did * * * wrongfully, unlawfully and maliciously begin an action against” Mm, and “ did cause to be issued out of the Supreme Court * * * a certain alleged order of arrest ” therein, and did cause him to be arrested thereunder and kept in custody for about a week, so that he was compelled to abandon his business…

This action was brought to recover damages to plaintiff’s premises in the city of Hew York caused by the building and maintenance of defendants’ road, and for an injunction restraining its further operation.

This was an action to restrain the defendants from maintaining and operating an elevated railway in front of premises belonging to the plaintiffs known as Mo. 934 Minth avenue; to recover the damages already sustained by reason of the construction and operation of said railway and, in case the defendants are permitted to continue to operate the same, to compel them to pay permanent damages sustained by the plaintiffs in consequence thereof.

This action ivas brought to set aside a judgment. The facts, so far as material, are stated in the opinion. The plaintiff is entitled to have the judgment entered against her upon an unauthorized appearance by an irresponsible attorney, together with all proceedings pursuant to said judgment, including the execution sale, the redemption and the sheriff’s deed, absolutely set aside.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is entitled to all the lands embraced in the treaty sanctioned by the government, to it. (Marble v. McMinn, 57 Barb. 610; Fellows v. Deniston, 23 N. Y. 420.) The construction of the boundary line under this treaty must be determined from the instrument itself.

By this action the plaintiff seeks to recover damages for injuries sustained under the following circumstances: On the afternoon of June 20, 1886, while descending the steps leading from the ground to the rear stoop of the premises known as FTo. 68 Schenck avenue, Brooklyn, a step broke, causing her to fall and resulting in injury. The premises were owned by the defendant, but occupied by one Leopold, a tenant, who entered into possession about the 1st of March, 1884.

This was an action to recover the proceeds of two promissory notes belonging to the plaintiff, claimed to have been received by the defendants in a fiduciary capacity and converted to their own use.

<p>Ii. conveyed certain premises to S. T. and H. by deeds absolute on their face in pursuance of an agreement, by which she contracted to so convey as security for a loan which the grantees agreed to and did make; said loan to be for a period not exceeding one year from the date of the deed. Upon repayment of the loan with the interest the grantees agreed to reconvey; but in case it was not repaid within the year, the grantor agreed that the deed should become absolute and that the grantees, their heirs and assigns, should become the owners in fee simple absolute. The loan was not repaid within the year and thereafter the grantor surrendered possession of the premises to the grantees. Plaintiff levied upon the premises, by virtue of an attachment against L. as a non-resident, in an action wherein the summons was served by publication, obtained judgment by default, and issued execution thereon. In an action to have said deeds declared to be mortgages, and the premises subjected to the lien of the plaintiff’s judgment, held, that plaintiff was entitled to the relief sought; that the deeds were mortgages; that the provision in the contract that if the loan was not repaid in the time specified they should become absolute conveyances, was ineffectual; that, as, therefore, the title remained in L., the lien by virtue of the attachment was valid, and the judgment and execution became a specific lien upon the land.</p> <p>The grantees before the attachment was issued executed a deed of the premises to the defendant, the N. Y. B. Union. The grantee had no notice of the agreement; it admitted that a portion of the purchase-money, agreed by it to be paid, remained unpaid. Held, that said defendant could not maintain the- defense; that it was not a bona fide purchase for value, as in order to sustain that relation, it. must have paid all of the purchase-money; but that to the extent of its payments innocently made before notice of plaintiff’s claim it was entitled to protection.</p>

Thé claimant was awarded for land taken....... $21 49 For water................................... 1, 000 00 Total................................... $1, 021 49 The state concedes its liability for the land taken. Further facts are stated in the opinion. The state, by virtue of the resolution of the canal board adopted in 1867, and the appropriation made thereunder, became entitled to the use of the entire water of Owasco lake and outlet.

The following is the opinion in full: “ This action was brought to set aside a general assignment for the alleged benefit of creditors upon the ground of fraud. “John and Thomas Morton were copartners-engaged in the manufacture of shawls under the firm name of Morton Brothers, at Skaneatles, N. Y. On the 13th day of September, 1887, they executed an assignment in writing to the defendant Sidney Smith of all their property, real and- personal, owned by them as copartners, and…