Volume 133 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. Even had the understanding and agreement existed on the 24th of November, 1864, which the court has without legal evidence found, this action, brought to a court of equity, should, nevertheless, have been defeated by the gross loches of the plaintiff, apart from any statute. (Bright v. Legerton, 29 Beav. 60; Hodgson v. Bibby, 32 id. 221; Browne v. Cross, 14 id. 105; In re McKenna, 13 Ir.

court on trial at Special Term.. This action was'brought to restrain the maintenance and operation of defendants’ elevated railroad in front of plaintiff’s-premises in Division street in the city of New York, and to-recover damages for injuries sustained. The facts, so far as material, are stated in the opinion. The plaintiff did not have at the time of trial such an interest in lands as to justify the-intervention. of a court of equity for his protection.

This action was brought by plaintiff, as trustee of the National Express and Transportation Company, a Virginia corporation, to recover from defendants, as alleged stockholders therein, an assessment for a balance due and remaining unpaid Upon 490 shares of the stock, which the complaint alleged Were purchased by the firm of Harrison, Garth & Co. Said corporation made an assignment for the benefit of creditors to plaintiff September 20, 1866, by which the right to call for…

The nature of the action and the facts, so far as material, are Stated in the opinion. The orders are appealable to this court. (Code Civ. Pro. §§ 190, 191, 1001; Raynor v. Raynor, 94 N. Y. 248; Dorchester v. Dorchester, 121 id. 156; Hannigan v. Allen, 127 id. 639 ; Whitman v. Foley, 125 id. 51; Getman v. Ingersoll, 117 id. 75.) The court has jurisdiction. (Newton v. Bronson, 13 N. Y. 387; Bailey v. Ryder, 10 id. 363; Story’s Eq.

The General Term order also denied the motion to require said purchasers to complete their purchase. The purchasers objected to the title upon three grounds: (1) That the order for service of defendants by publication was based upon a defective affidavit. (2) That the bonds of the guardian ad litem for infant defendants did not conform to the provisions of the Code of Civil Procedure. (3) That the order appointing a guardian an litem for the infant defendants was a nullity.

<p>1. Real property. Improvements.—To move a court of equity to support a claim for the improvements put upon the property of another, it should at least appear that the occupants had acted upon a belief as to their title, which had some probable basis, and that the real owners, knowing of their acts, suffered them to go on without notifying them of the actual condition of the title.</p> <p>2. Same. Lease.—The subsequent acceptance of a lease of the premises by the occupants from the owner is a recognition of the title in the lessor, which, when considered in connection with the absence of any legal title or estate in them, operates as a waiver of any claim for improvements.</p> <p>3. Former adjudication. Bar.—An adjudication in a prior litigation bars any inquiry, in another action between the same parties, into matters involved in, and necessarily passed upon by, the judgment in the former action.</p> <p>4. Real property. Claim.—To maintain an action under the provisions of section 1638 of the Code of Civil Procedure, the plaintiff must show possession under some claim of title.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of June, 1891, which affirmed a judgment in favor of defendant, entered upon a verdict and. also affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages occasioned by the death of George A. Bryant by the overturning of a wagon loaded with bark, on a public highway in the town of Bandolph, on the 23d day of September, 1887.</p> <p>The deceased was a young man nineteen years of age, and on the morning of the day mentioned he started two miles south of the place where the New York, Pennsylvania and, Ohio Bailroad crosses the intersection of two public highways in the town, with a team and wagon loaded with hemlock bark, to go to the village of East Randolph, which lies about.two miles north of the railroad. The railroad was constructed in 1860, and crossed the two highways about twelve feet above their original grade. This rendered necessary the raising of the surface of each of the highways as they approached the crossing, both on the north and south, so as to enable travelers to cross the track of the railroad. The railroad company thereupon constructed embankments in the highway on each side of the crossing, 12 feet high at the intersection of the highways and the crossing, and descending northerly and southerly from thence until the original grade of the highways was reached. The embankments from a point a few feet from the crossing were 11 to 12 feet wide, and travel was practically confined to the space on the top of the embankments. The sides were left unguarded by any railing or other barrier. Owing to the angles at which the highways approached the crossing, a person driving from the south approached the crossing on a curve to the left, and on reaching the crossing Was required to make a curve to the right, and then another curve to the left, in order to follow the road to East Randolph.</p> <p>The intestate reached the crossing on his way north, and after passing over the crossing drove so near the edge of the embankment that the right hind wheel of the wagon commenced to cut down into the loose gravel on the west side, and finally the wagon overturned and the intestate received the injury of which he died. The intestate was seated on the top of his load on the right hand side, just forward of the right hand wheel of the wagon, holding the reins, and in reach of a brake connected with the axle of the wagon, in which position he could see the top of the horses’ ears, but not their bodies. It appears that drivers sometimes sat in the position occupied by the intestate, and sometimes near the front wheel, in which case they would operate the brake by means of a rope attached to the lever, and a loop in which the foot was placed. It was shown that the intestate was a careful driver, acquainted with the management of horses; that he was familiar with the road, and that the team he drove was steady and manageable. The traveled part of the embankment was firm, six to eighteen inches from the edge on the west side. It liad rained from twenty-four to thirty-six hours before the accident, and it may be inferred that the side of the embankment was softened by the rain. Maps were introduced showing the course of the wagon after it passed the crossing, as indicated by the tracks made by the wheels, and from which it appeared, as claimed by the plaintiff, that the horses were properly in the track, and that the wheels on the near side of the wagon both commenced to cut down in the beaten track, and that the front wheels remained in their proper position until by the cutting down of the hind wheel more and more, the front wheels were drawn over and die wagon overturned.</p> <p>The claim to charge the town of Randolph is based upon the alleged negligence of the commissioner of highways in omitting to observe due care in protecting the embankment by a railing or barrier, or otherwise, so as to render it safe for public travel. It was also claimed that, in 1886, the commissioner of highways, in attempting to improve the road, had rendered it more dangerous than it was before. The embankments had continued as they were constructed in 1860 until 1866. It is not seriously-questioned that the crossing was difficult and dangerous for loaded teams by reason of the curves mid the narrowmess of the embankments.</p> <p>The plaintiff’s counsel offered to prove that in repeated instances prior to the accident in question, accidents had occurred to travelers and teams from the condition of the highway at this point, but the proof was excluded on the defendant’s objection.</p> <p>It was conceded that the commissioner of highways had sufficient funds to make any reparation required.</p> <p>It does not appear that the plaintiff’s intestate was free from negligence. (Ireland v. O., etc., P. R. Co., 13 N. Y. 531; Cordell v. N. Y. C. & H. R. R. R. Co., 75 id. 330; Harte v. H. R. B. Co., 84 id. 56; Becht v. Corbin, 92 id. 658; Searles v. R. R. Co., 101 id. 661; Donnelly v. D. C. R. Co., 109 id. 16; Hale v. Smith, 78 id. 480, 484; Tolman v. R. R. Co., 98 id. 198.) Plaintiff’s intestate was actually negligent, and such negligence was the direct cause of the injury complained of. (Norris v. Kohler, 41 N. Y. 42, 46; Baker v. Savage, 45 id. 191; Connelly v. R. R. Co., 88 id. 346; Gray v. S. A. R. R. Co., 65 id. 561; Wendell v. R. R. Co., 91 id. 420 ; Dubois v. City of Kingston, 102 id. 219 ; Durkin v. City of Troy, 61 Barb. 437; Reynolds v. R. R. Co., 58 N. Y. 248; Tolman v. R. R. Co., 98 id. 198; Bunn v. D., L. & W. R. R. Co., 6 Hun, 303.) The court erred in refusing to nonsuit upon the ground that the evidence does not show neglect of official duty on the part of the highway commissioner; that it appeared affirmatively that the place where the accident occurred was upon the railroad crossing, and that it was not the duty of the highway commissioner to keep the railroad crossing in repair, but it was the duty of the railroad company. (Post v. W. S. R. R. Co., 123 N. Y. 589, 590; People v. N. Y. C. & H. R. R. R. Co., 74 id. 302, 306; Masterson v. N. Y. C. & H. R. R. R. Co., 84 id. 247; Robinson v. N. Y. & E. R. R. Co., 27 Barb. 512; Hunt v. Mayor, etc., 109 N. Y. 134; Roe v. Elmindorf, 52 How. Pr. 232; White v. City of Quincy, 94 Mass. 430; Rouse v. City of Summerville, 130 id. 361; Scanlan v. City of Boston, 140 id. 84; Flanders v. Norwood, 141 id. 17; Riley v. Town of Greenburg, 21 N. Y. S. R. 434; Carpenter v. City of Cohoes, 81 N. Y. 21; Laws of 1850, chap. 140, § 28; Laws of 1855, chap. 255 ; Hubbell v. City of Yonkers, 104 N. Y. 434; Monk v. Town of New Utrecht, 104 id. 552.) If plaintiff’s intestate did not, in passing across the railroad track and along roadway 1, make a vigilant use of his eyes in seeing and knowing the position of his team upon the roadway, and if he did not use active care in knowing the position of his team and in guiding them, then he was negligent per se. (Bunn v. D., L. & W. R. R. Co., 6 Hun, 303; Wilbur v. N. Y C. & H. R. R. R. Co., 58 N. Y. 451.) The question for the jury to determine was whether the commissioner wilfully, intentionally and culpably neglected his duties. (Hunt v. Mayor, etc., 109 N. Y. 134.)</p> <p>There was evidence tending to show negligence on the part of the highway commissioner. (Maxim v. Town of Champion, 50 Hun, 88; 119 N. Y. 626; Urquhart v. City of Oydensburg, 91 id. 67; Monk v. Town of New Utrecht, 104 id. 552; Tolmam v. S. B. & N. Y. R. R. Co., 98 id. 198; Hart v. H. R. B. Co., 80 id. 622; Glasier v. Town of Hebron, 41 N. Y. S. R. 750.) The court correctly submitted the case to the jury upon the theory that the highway commissioner had a duty to discharge with respect to the piece of road in question, and that if he was wanting in the discharge of that duty it was negligence upon his part. (Tierney v. City of Troy, 41 Hun, 120; Wilson v. City of Watertown, 3 id. 508; People v. City of Brooklyn, 65 id. 349; Davis v. Leominster, 1 Allen, 185; State v. Gorham, 37 Me. 451; S. & R. on Neg. [4th ed.] § 357.)</p>

This action was brought by plaintiffs to recover damages for obstructing access from their lands to the waters of the Hudson river by the building of a railroad in front of them by defendant and for a removal of said obstruction so as to enable them to use a right of way to said river. The facts, so far as material, are stated in the opinion. The .title to lands under water is absolute —• especially along the Hudson.

This action was brought to recover for services alleged to-have been rendered by plaintiff, as attorney for the Law and Order League of the town of Kirkland, of which defendant-was treasurer. The facts, so far as material, are stated in the opinion. “ The league ” is not such an association as is contemplated by section 1919, Code of Civil Procedure. It is not shown by any evidence that all the-members arc- hable jointly, or in any manner.

This action was brought to recover a balance claimed to be due upon an account between the parties. The facts, so far as material, are stated in the opinion. The referee erred in refusing to deduct from the plaintiff’s claim the sum of $1,700 paid out of the firm assets, upon Wheatland’s draft on Prior for $1,700, dated June 11, 1889.

This action was brought to recover a penalty for an alleged violation by defendant on July 11, 1890, of an ordinance of the common council of the city of New York, relating to the running of street cars in said city, which took effect July 8, 1890.

entered upon the report Of a referee, an order of Special Term denying a motion by plaintiff to set aside said report, and also an Order granting an extra allowance. The nature of the action and the facts, so far as material, are stated in the opinion. A covenant in a lease requiring a lessee to surrender in as good a condition as reasonable use would permit, does not relieve him from the other covenant to keep and maintain in good repair.

of the court on trial at Special Term. The facts out of which the question arose are as follows: In the month of August, 1888, Clermont L. De Peyster executed a deed of trust to the plaintiff, whereby he transferred to it certain real and personal property, including the property in question, in trust, to receive the rents and income during his life, and after his death to convey and assign it “ to such person or persons and in such shares as shall be designated and…

<p>The ownership by a commercial correspondent, who has advanced his own money or credit for a principal for the purchase of property, and has taken bills of lading in his own name, extends so far only as is necessary to secure him for the advances so made; it will not permit of his acquiring, although agreed to by the principal, a general lien upon the property, for other and prior indebtedness, as against one owning an interest in the property.</p> <p>Two merchants, P., doing business in New York, and St. A., in France, entered into a contract which, after reciting that I). was willing to give to the parties a monopoly of a certain brand of sardines, contained an agreement that each of the parties was to advance forty per cent of the cost, the sardines to be shipped to P. for sale; the net proceeds to be divided. To raise the forty per cent so to be advanced by him, P, procured from plaintiffs, a banking firm, letters of credit, which authorized drafts to be drawn upon them " for the cost of the merchandise,” advice thereof to be given to plaintiffs, to be accompanied by abstracts of invoices and bills of lading to their order. By virtue of these letters of credit, St. A. drew upon plaintiffs the percentage of the cost of purchases agreed to be advanced by P., and caused the invoices and bills of lading to be made out and forwarded to plaintiffs’ firm, as required, which drafts were accepted and paid by it. By the agreement between P. and-said firm, he gave it a specific lien on the goods purchased to the amount so advanced, and also pledged to them, as security for any other indebtedness, “any surplus that may remain, either in the goods or the proceeds thereof, after providing for the acceptances under this credit.” Such a surplus having arisen, plaintiffs claimed the right to retain it, to apply upon a prior and independent indebtedness of P. Held, that said claim was untenable as against St.A.; that he had an equitable title at least to all beyond P.’s share, which was superior to the general lien of plaintiffs; also, that St. A. was not estopped, by the fact that he caused the invoices and bills of lading to be made out to the order of plaintiffs’ firm, from claiming his interest, or from asserting that the acceptances were not for the full cost of the goods; that the words of the agreement, authorizing drafts “for the cost of merchandise,” did not imply that they were to be for the full cost, but the intent was to limit the amount so that in no event the draft, should exceed the cost, and that it must be on account thereof.</p> <p>It seems, that even assuming that under the agreement there was an implied representation that the drafts drawn were for the full cost of the merchandise, St. A. would still be entitled to assert his interests as against plaintiffs’ general lien for prior advances to P. arising out of another transaction with another party, and not made on the faith of the goods in question, as plaintiffs parted with no value beyond their specific lien by virtue of any such implied representations.</p>

This was an action upon a promissory note. The facts, so far as material, are stated in the opinion. The question “ whether there is a warranty or not must depend upon the circumstances of each particular case.” (Hoe v. Sanborn, 21 N. Y. 563; Duffee v. Muson, 8 Cow. 26.) Under the circumstances in this case there was an express warranty that the wine wale intrinsically sound and free from latent defects.

This was an action of conversion. The facts, so far as material, are stated in the opinion. Plaintiff was not in a position to maintain conversion. (Thomas on Chat.

Cross-appeals from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made October 1, 1891, which affirmed a judgment entered upon a decision of the court on trial at Special Term. This action was brought upon certain bonds issued by the defendant in aid of the Greenwich and Johnsonville Railroad Company under the Town Bonding Acts, and for moneys said to have been loaned by plaintiff to defendant pursuant to said acts.

<p>The assets of a corporation are a trust fund for the payment of its debts, upon which its creditors have an equitable lien, both as against the stockholder and all transferees, except those purchasing in good faith and for value.</p> <p>A transfer by a' corporation of all its property and effects, which has the effect of terminating the regular business of the corporation, and was made and accepted by the transferee with that purpose, is illegal as against creditors of the corporation.</p> <p>In an action to set aside such a transfer, to sequester the property and to have a receiver appointed, it appeared that the transfer was made, without consideration, except the assumption of the debts of the transferer, to another corporation, having the same stockholders and officers, and which, before the transfer, conducted the business of the transferer. The transferee immediately executed a mortgage covering its own property and that thus transferred. It was urged as a defense that the transaction was a practical consolidation of the two companies. Held, untenable; that a consolidation could only be effected under the permission and safeguards of the statute.</p> <p>Also held, it was no answer that the creditor was not harmed by a change of the debtor; that he could not be forced to make such a change against his will; also that he was in fact harmed by the mortgaging of the property.</p> <p>The prohibition of the statute (1 R. S. 603, § 4) against a transfer by a corporation in contemplation of insolvency is not limited to cases where payment of some obligation of the corporation has previously been refused.</p> <p>Where the parties to such a transfer know that its necessary effect will be to make the corporation unable to pay its debts, they will be held to have intended that consequence of their acts, and the transfer is illegal.</p> <p>It appeared that under the judgment in an action subsequently commenced by one of the defendants, a receiver of said property had been appointed; this appointment was made without notice to the attorney-gen eral, as required by the statute (Chap. 378, Laws of 1883). Held, that the judgment and such appointment were not a bar to this action.</p>

The facts, so far as material, are stated in the opinion. The sale was made in “good faith,” properly conducted, and with “the ordinary prudence ” of the: statute. (Code Civ. Pro. § 1832; Kent v. Whitney, 9 Allen, 62; Brigham v. Evans, 113 Mass. 419; Crook v. Owens, 121 id. 28.) The payment of the counsel fee should be deemed proper, as found by the referee and the surrogate, and the administrator only be charged with the $300, as the net proceeds of the Adgate stock.

This was an action for trespass. The facts, so far as material, are stated in the opinion. The plaintiff having no deed which would cover the encroachment, it was error to allow him to introduce in evidence what is called the Wey sketch, plot or map. (Tittering v. Tees, 78 Tex. 567; Harmer v. Morris, 1 McL. 44; U. S. v. Hansan, 16 Pets. 196; Dunraven v. Llewellyn, 15 Ad. & El. 791; Hollister v. Dowe, 3 Wkly. Dig. 557.) It was also error to receive the Wey deed in evidence.

The nature of the action and the facts, so far as material, are stated in the opinion. When the executive board let the contract for the improvement of Lake avenue there was no existing resolution of the common council authorizing it. Said board had no power to let the contract, and the assessment herein should be set aside.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made May 12,1890, which affirmed a determination of defendant as commissioner of the department of police and excise in the city of Brooklyn in removing the relator from the office of boiler inspector.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The holler inspectors have the same privilege of irremovability as that possessed by members of the police force. (Laws of 1867, chap. 883; Laws of 1871, chap. 194, § 16; Laws of 1870, chap. 136, § 13; Laws of 1888, chap. 583, § 13.) The words “privilege” and “ right ” are defined by courts and lexicographers as synonymous. A privilege may be a right. (People ex rel. v. Dikeman, 7 How. Pr. 124, 130; Laws of 1888, chap. 583, §4; People ex rel. v. Robb, 126 N. Y. 180.) Boiler inspectors have an interest in the police pension fund created under the Brooklyn charter. (Laws of 1888, chap. 583, §§ 41, 42, 49.)</p> <p>The relator is not & member of the police force. (Laws of 1873, chap. 863; Laws of 1886, chap. 404; Laws of 1888, chap. 583; Laws of 1889, chap. 280; Laws of 1888, chap. 583, §§ 2, 13.) The grant to appellant of the same powers and privileges as the members of the police force have, does not exempt him from, removal at the pleasure of the respondent. (Laws of 1888, chap. 583, §§ 12, 19, 20, 25, 28, 32, 42; Laws of 1889, chap, 280; Laws of 1888, chap. 583, §§ 4, 17, 18; Id. chap. 119, § 1; People ex rel. v. Purroy, 31 N. Y. S. R. 934; Const. N. Y. art. 10, § 3; 1 Dillon on Mun. Corp. chap. 9, § 250.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Relator’s discharge was legal. (People ex rel. v. Adams, 51 Hun, 583.) The moving papers fail to show, that at the time of relator’s discharge, the fact that he was an honorably-discharged Union soldier, was brought to the attention of the appointing power, viz., John P. Adams, commissioner of city works.

The facts, so far as material, are stated in the opinion. The commitment was a final judgment under the Habeas Corpus Act (§ 2016, Code of Civil Procedure), and conclusive as to the child’s age. (In re Moses, 1 N. Y. Cr. Rep. 508; In re Wright, 29 Hun, 357; In re Donohue, 1 Abb. [N. C.] 1; People ex rel. v. Liscomb, 60 N. Y. 559; People ex rel. v. N. Y. J. Asylum, 12 Abb. Pr. 92; In re Baker, 11 How. Pr. 418, 425 ; People v. Superintendent, etc., 8 Abb.

<p>Excise Commissioners—Neglect oe Duty—Beeusal to Determine Complaint—L. 1873, Ch. 549—Penal Code, § 117—L. 1882, Ch. 410, § 109—Code Civ. Prog. § 2090.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Flew York, entered upon an order made July 14, 1891, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial without a j™7-</p> <p>This action was brought to recover the sum of $11,987.50, with interest from July 8,1890, which amount plaintiff alleged he overpaid to the defendant upon the purchase of a tract of land at DeLancey’s Neck in the town of Mamaroneck, Westchester county, N. Y., known as “ Yergemere.” That by the terms of the auction sale at which it was bought, it was described as containing 221<$r acres, but contained only 18-$^ acres.</p> <p>The material facts are stated in the opinion.</p> <p>The deed does not cover and convey the land between ordinary high and low-water mark upon which the upland, on the easterly and southerly sides, abuts. (Thayer v. Finton, 108 N. Y. 394, 397; Masten v. Olcott, 101 id. 152, 158; Norton v. Hughes, 17 Abb. [N. C.] 287; Gerard on Titles [3d ed.], 509, 517; Fenlite v. Sinnot, 125 N. Y. 683 ; Green v. Collins, 86 id. 246; Griffiths v. Morrison, 106 id. 165.) To a point on the shore of Long Island sound, in the deed, means ordinary high-water mark; shore being the land between ordinary high and low-water mark, land over which the daily tides ebb and flow. (3 Washb. on Real Prop. [5th ed.] 446, 447; Wheeler v. Spinola, 54 N. Y. 377, 385 ; Canal Comrs. v. People, 5 Wend. 443 ; People v. Tibbitts, 19 N. Y. 523; Gould v. H., etc., R. R. Co., 6 id. 522 ; People v. Canal Appraisers, 33 id. 461; Mayor v. Hart, 95 id. 443 ; Cortelyon v. Van Brumt, 2 Johns. 357, 362; Storer v. Freeman, 6 Mass. 435; Peyroux v. Howard, 7 Pet. 324; Howard v. Ingersol, 13 How. Pr. 381, 421; Barney v. City of Keokuk, 94 U. S. 324, 326; United States v. Pacheco, 2 Wall. 587, 590.) The language of the deed, “ and thence running along said division line * * * about 865 feet to a point on the shore of Long Island sound, thence running along said shore and sound as the same bend and turn, etc.,” does not carry the northerly line or course of the premises beyond high-water mark. The same is true of the language of the deed describing the westerly line or course from beyond high-water mark. (3 Washb. on Real Prop. [5th ed.] §§ 39, 40; Jackson v. Young, 1 Cow. 605, 612; Jackson v. Butler, 7 id. 723; Drew v. Swift, 46 N. Y. 204, 207; Robinson v. Kime, 70 id. 147, 154; Armstrong v. Du Bois, 90 id. 95 ; Benson v. Townsend, 4 N. Y. Supp. 860; Masten v. Olcott, 101 N. Y. 152; Thayer v. Finton, 108 id. 394; Muhlker v. Ruppert, 124 id. 627.) The description in the deed, so far as it relates to the boundaries on Long Island sound, on the easterly and southerly sides of the premises, does not convey beyond high-water mark. (Thayer v. Finton, 108 N. Y. 397; Coleman v. M. B. Co., 94 id. 229 ; 3 Washb. on Real Prop. 447, § 50.) The rule of construction contended for by plaintiff, that courses and distances and quantity must yield to monuments, especially to natural monuments, as boundaries, and that courses must be varied and distances varied so as to conform to the natural objects or bounds called for by the grant, is not absolute or inflexible. (Higginbottom v. Stoddard, 72 N. Y. 94.) The decision in Storer v. Freeman (6 Mass. 435) has been approved and followed by the courts of this state and of the United States, and should control the case at bar.</p>

This action was brought by plaintiff to recover salary alleged to be due him as a clerk in the department of public works of the city of Yew York. The facts, so far as material, are stated in the opinion. The agreement between the commissioner of public works and the plaintiff, that the latter should be paid from the specific appropriation “ for repairing and renewal of pipes, stop-cocks, etc., salaries,” was a competent one.

<p>An extra allowance of costs may not be granted in a controversy submitted upon an agreed case, under the Code of Civil Procedure (§ 1279).</p> <p>The provisions of said Code (§ 3253), permitting an extra allowance of costs in “a difficult and extraordinary case, where a defense lias been interposed,” applies only to actions commenced in the ordinary way, in which an answer or demurrer has been interposed, and refers to proceedings in an action in those courts which ordinarily exercise original jurisdiction and not to proceedings in an appellate court</p>

The facts, so far as material, are stated in the opinion. The petition was not defective. (Code Civ. Pro. §§ 3357, 3384; Laws of 1884, chap. 252; In re N. Y., W. S. & B. R. R. Co., 64 How.

<p>Appeal from /order of the General Term of the Supreme Court in the second judicial department, made the second Monday of May, 1891, which reversed a. judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term and granted a new trial. Said order did not state that the reversal was upon the facts.</p> <p>This action was brought to recover damages for an alleged false return of an execution issued to defendant, as sheriff of Kings county, in an action commenced by plaintiffs against John H. Bani and Patrick C. Turner, August 14, 1889.</p> <p>It was admitted upon the trial that on March 12,1889, three attachments were issued to defendant in actions against Bani & Turner. The second one so delivered being in the action brought by plaintiffs. The deputy sheriff, upon the receipt of the first warrant of attachment, went to the warehouse of C. B. Lockwood & Co., where it was claimed that certain merchandise belonging to Bani & Turner was located, but was informed by the gentleman in charge that no goods belonging to said firm were in their possession. The next day the deputy -again went to the warehouse on the same errand, but had with him on this occasion all three attachments. On the sixteenth of August he was served with a certificate from Lockwood & Co., stating that they had no goods belonging to Bani & Turner in their possession. On that day he entered the warehouse and certain goods were pointed out to him as belonging to Bani & Turner. The warehouseman, however, refused to hold the goods in the sheriff’s name and the sheriff informed all the attaching creditors, including the plaintiffs, that if they wished him to seize and remove the goods they would have to furnish him with bonds. The other attaching creditors gave the bonds required and the goods were thereupon removed by the sheriff and subsequently sold; no bond was given by the plaintiffs up to the time the goods were taken from the warehouse, they having refused so to do, and none was given by them so far as the levy in question was concerned. The property taken from the warehouse was sold on two different occasions, viz., September 23 and October 15, 1889. The proceeds of the sales amounted to $3,799, which was paid to the other attaching creditors. The amount realized upon the second sale was $520.</p> <p>Judgment was recovered on the 21st day of November, 1889, in plaintiffs’ action and execution levied thereon, which was returned by the sheriff wholly unsatisfied. The judgment below gave plaintiffs $520 (the proceeds of the second sale),, with interest. From this judgment appeals were taken both by the plaintiffs and the defendant. The case was heard at the General Term in May, 1890, and judgment was rendered reversing the judgment of the Special Term.</p> <p>The order of the General Term does not state that the reversal was made upon questions of fact as well as law. It must be presumed that the reversal was based upon questions of law only. (Roberts v. Tobias, 120 N. Y. 1.) If the plaintiffs were guilty of loches it did not affect their rights, nor did they thereby lose their priority. (Peck v. Tiffany, 2 N. Y. 451; Pach v. Gilbert, 124 id. 619, 620; Larned v. Vredenburg, 7 How. Pr. 379 ; 8 id. 77; Camp v. Chesterfield, 5 Den. 182; Code Civ. Pro. §§ 1406, 1408.) If a creditor can in any case lose his priority because of his failure to indemnify the sheriff before a levy, it must appear that a demand has been made for security and that it was. deliberately refused. (Drake on Attachments [6th ed.], § 189 ; Smith v. Osgood, 46 N. H. 178; Kneeland on Attachment, §§ 471-475, 502.) Defendant is estopped from now claiming that he was guilty of unlawful acts in seizing and selling prop-1 erty of other persons and paying over the proceeds. (T. N. Bank v. Elliott, 42 Hun, 122.)</p> <p>The appeal to this court should not be considered on its merits. (Andrews v. Lyng, 94 N. Y. 16 ; Ehrichs v. De Mill, 75 id. 370-374; Wolstenholme v. W. F. M. Co., 64 id. 272; Foot v. Æ. L. Ins. Co., 61 id. 571, 578 ; Whitehead v. Kennedy, 69 id. 462 ; Guernsey v. Miller, 80 id. 181; Cromwell v. Burr, 12 Wkly. Dig. 120; Meyer v. City of Louisville, 26 Barb. 609; Hooper v. Beecher, 109 N. Y. 608; Fairbanks v. Corlies, 1 Abb. Pr. 155.) Ho lien is acquired by a party under an attachment unless an actual seizure of the property by the sheriff takes place under said attachment. (Code Civ. Pro. § 649; Warner v. F. N. Bank, 115 N. Y. 251, 255; Plympton v. Bigelow, 4 Civ. Pro. Rep. 189 ; Smith v. Orser, 42 N. Y. 132; 43 Barb. 187; Lynch v. Crary, 52 N. Y. 181, 182; Rodgers v. Bonner, 45 id. 379, 382; Pach v. Gilbert, 17 Civ. Pro. Rep. 399; 124 N. Y. 612, 619; Learned v. Vandenburgh, 8 How. Pr. 77; 7 id. 379 ; Smith on Sheriffs, 256 ; Crocker on Sheriffs, § 370; Murfree on Sheriffs, § 262.) It may be contended by plaintiffs, their attachment being delivered into the hands of the sheriff prior in time to that of the third attaching creditor,, that, therefore, they hold a prior lien upon all property subsequently levied upon. The language of the Code prevents any such unreasonable rule. (Code Civ. Pro. §§ 697, 1406; Yale v. Matthews, 20 How. Pr. 430; Burkhardt v. Sandford, 7 id. 329 ; Larned v. Vandenburgh, 8 id. 77 ; Wade on Attach. §§ 32, 248.) The sheriff’s right to demand indemnity before executing the attachment upon the property is undoubted, and especially is this the case, where the property to be seized is not in the hands of the debtor himself, but in the hands of some third person, and where the title is disputed. (Chamberlain v. Beller, 18 N. Y. 115; Smith v. Osgood, 46 N. H. 178; Smith v. Cicotte, 11 Mich. 383; Shriver v. Harbaugh, 37 Penn. St. 390 ; Bond v. Ward, 7 Mass. 123; Townsend v. Aeury, 26 Minn. 203; Drake on Attachments, § 189; Waples on Attachments, 147, 150; Croker on Seizures, §§ 371, 464; 1 Burnsey’s Pr. 527; Herman on Executions, § 277, 1875; Freeman on Executions, § 254; Code Civ. Pro. § 657; Perkins v. Pitman, 34 N. H. 261; Bond v. Ward, 7 Mass. 123; Kellogg v. Griffin, 17 Johns. 274; Van Loan v. Kline, 10 id. 129; Sterling v. Welcome, 20 Wend. 238 ; Cornell v. Cook, 7 Cow. 315; Dunderdale v. Sauvestre, 13 Abb. Pr. 116 ;, Price v. Shipps, 16 Barb. 585; Slocum v. Blackburn, 18 Ark. 309; Wise v. Darby, 9 Mo. 131; Albertson v. Blackburn, 28 Ala. 701; Truits v. Ludwig, 25 Penn. St. 145; Mickie v. P. Bank, 4 How. [Miss.] 130.) The bond and the written instructions are parts of one instrument, and must be construed together. (Chester v. Bank of Kingston, 16 N. Y. 336 ; Clark v. Woodruff. 83 id. 518.) Plaintiffs are precluded from a recovery in this action for the reason that they have failed to make out any case against the defendant. (Murfree on Sheriffs, § 937; Nash v. Whitney, 39 Me. 341; Commonwealth v. Lelar, 1 Phil. 333; Commonwealth v. McCoy, 8 Watts. 154; 34 Am. Dec. 445; Commonwealth v. Coutner, 31 Penn. St. 274; Rector v. Clark, 12 Hun, 189.)</p>

The nature of the action and the facts, so far as material, ■are stated in the opinion. The court cannot restrain ■defendants from exercising the functions and performing the duties of officers and directors of the turnpike company, nor from operating the road as a turnpike-road, because the action is not brought for that purpose, nor is the turnpike corporation a party to the suit.

This action was brought to recover damages for unlawful' imprisonment accompanied with slanderous words. The facts, so far as material, are stated in the opinion. Defendant was not liable for the torts of Dayton by virtue of the maxim, respondeat superior, because Dayton was acting outside the scope of his-employment, in doing the acts complained of.

<p>Abortion—What constitutes.</p> <p>The mere suggestion or advice to go to a physician and get some medicine to procure an abortion, without evidence of its being acted¡ upon, does not create the offense under section 394 of the Penal Code.</p>

On November 21, 1891, the St. Lawrence and Adirondack Railroad Company, a railroad corporation organized under the general law of the state, made and filed a map locating the route of its road. The road, as located, crossed township No. 1, Brown’s tract (so-called), situate in the town of Wilmurt, in the county of Herkimer, over lands owned by Julia L. DeCamp, but whose deed was not recorded.

This was a proceeding by certiorari to review the action of the commissioners of taxes and assessments of the city of New York, in imposing an assessment upon the capital stock of the National Express Company, a joint-stock company, of which the relator is treasurer, for the year 1888. The facts, so far as material, are stated in the opinion.

This was an action to recover the rent for one year of certain premises in the city of Mew York. The facts, so far as material, are stated in the opinion. The question whether the conduct of Mrs. Coventry, the sub-tenant, amounted to a holding over by Mrs. Aldrich, the defendant, was a question for the jury.

This action was of trespass to recover damages to plaintiffs premises arising from the removal of a barn a portion of which stood thereon. ^ The facts, so far as material, are stated in the opinion. The barn was built by the person, who at the time of building it, owned the lot on which the whole of it stood; on its erection under such circumstances, it became and remained a part of the realty and passed with its conveyance.

The nature of the action and the facts, so far as material,, are stated in the opinion. The referee’s construction of the contract of August 17, 1888, is wholly erroneous» (Langdell on Cont. § 128.) When a party agrees that work: shall be completed to the satisfaction of a third person, lie-must aver and prove that the work was so completed.

This was an action of ejectment. The facts, so far as material, are stated in the opinion. Plaintiff did not make a proper or sufficient demand for his interest in the premises. (Code Civ.

<p>The complaint herein alleged a conveyance by plaintiff to defendant, the city of Yonkers, of certain premises therein described, “with the exception and reservation and upon the express condition ” that a strip thereof, of a width specified, extending along a street of the city should forever remain a part of said street, and that the residue of the land conveyed should forever remain public and open as a public highway, and that no building shall be erected or permitted upon said premises. It was further alleged that the city has permitted and still permits a house to stand on the premises after full knowledge and notice of the encroachment; that a previous action had been commenced by plaintiff against the same defendants to enforce a forfeiture, upon the trial of which all the facts here alleged were found to be true, except notice to or knowledge of the city; that judgment therein was rendered for plaintiff, which was reversed on appeal by the General Term upon the law and not the facts, and that on appeal to this court the order of reversal was affirmed upon the ground that the city had no notice of the encroachment complained of; that upon trial of the former action the city defended through the city attorney, and so acquired full knowledge of the encroachment, but, nevertheless, permitted it to continue. Defendants demurred on the ground that the complaint disclosed the existence of a prior judgment, which is a bar to a recovery herein. Held, untenable; that assuming judgment absolute was ordered and was entered in the former action, the complaint herein sets up a cause of action accruing after the former judgment; and so, that a recovery would not be inconsistent with the former judgment.</p>

The facts, so far as material, are stated in the opinion. The objection that the court has no jurisdiction to review the determination of the comptroller by writ of certiorari, was properly overruled. (People v. Wemple, 60 Hun, 225 ; 29 N. E. Rep. 808.) The relator is not liable to taxation for the years prior to 1889.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. Property which is not required for a proposed public use cannot be taken by the power of eminent domain. (In re Albany St., 11 Wend. 148; Embury v. Conner, 3 N. Y. 511, 516, 517; In re N. F. Co., 108 id. 375 ; Hunter v. Sandy Hill, 6 Hill, 407.) Courts of equity will restrain the disturbance of burial places.

<p>Where, prior to May 1,1891, the trustees of several water-works companies, had entered into an agreement for consolidation, as authorized by the act of 1867 (Chap. 960, Laws of 1867, amended by chap. 374, Laws of 1877), and had called a meeting of stockholders to ratify the agreement, and-served and began the publication of the required notices, held, that the-repeal of said act by “The General Corporation Law” (Chap. 563, Laws-of 1890) did not affect the proceeding; that it represented a right accruing or in process of enforcement, and so was preserved from the effect of the repeal by the saving clause in said law (§ 24), which declares that such repeal shall not afiect or impair any act done or right accruing or acquired before that date, but that the same may be asserted or enforced as fully and to the same extent as if such law had not been repealed.</p>

This action was brought to recover damages for the alleged breach of a covenant of quiet enjoyment in a deed executed by Joseph Esty, defendants’ testator, to Byron A. Todd, plaintiff’s grantor. The facts, so far as material, are stated in the opinion. The trial court erred in applying the full measure of damages applicable in cases of total failure of title.

•Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of conviction of the crime of grand larceny in the first degree.

This action was upon a policy of fire insurance on a dwelling-house at Cape Vincent, Jefferson county. The policy was issued by one Kelsey, an agent of the defendant, having power to countersign and issue policies furnished in blank by the company, within the territory covered by his agency. It was a standard policy in the form, and containing the printed conditions prescribed by the act of 1886.

<p>-An accident insurance policy, issued by defendant, upon the life of W., provided that the insurance should not “ extend to or cover * * "x" suicide, sane or insane, * * * voluntary exposure to unnecessary danger,” etc. In an action upon the policy it appeared that W., after crossing á railroad track in the village in which he lived, in the evening, met two men going toward the crossing, to whom he said: “Boys, look out for the engine,” and one of them replied: “ I’m not afraid; my life is " insured.” A train was at that time approaching. The men passed on over the track. W. turned and retraced his steps, and when within a few feet of the crossing, stood still. The train was moving at about the rate of four miles an hour; the whistle of the engine was blowing ■ and its bell ringing. When it was within about twenty five feet of the ■ crossing, W. moved forward, and when upon the track, “squatted down; ” he was struck by the engine and killed. The locality was lighted by an electric light. It did not appear that the men W. met " were inebriated, or that there was any reason for him to incur danger on their behalf. Held, that the evidence disclosed that the danger was voluntarily and unnecessarily incurred, and so, that defendant was not liable; also, that evidence given negativing the idea of a motive on the part of W. to destroy bis life, did not justify the submission of the case to the jury.</p>

This action was brought to recover a balance claimed to be due upon a contract by Jesse Button, plaintiff’s assignor, to build an artesian well for defendant, and for services in repairing damages thereto, caused by the explosion of a torpedo. The facts, so far as material, are stated in the opinion. The refusal of defendant to pay Button what was due him was entirely without justification.

This was an action to foreclose a mechanic’s lien. The facts, so far as material, are stated in the opinion. It was entirely competent on the part of the defendant Christian Baur, upon the trial of this action, to vary, explain, amplify or show the true meaning of the written contract entered into between Claus Schloen, Christian Baur and Matthew Thornton on August 19, 1890, by paroi testimony as to what occurred both before, at the time and after said contract was executed.

This was a proceeding to review by certiorari an assessment by the assessors of the village of Bath, Steuben county. Mr. Young, the relator, was assessed in 1889 in the village of Bath, where he resided, for $100,000 upon personal property in his possession in that village, as agent for certain trustees, who, with1 their cestui que trust, were non-residents of the United States.

<p>Appeal from judgment of the General Term of the Supreme, ‘Court, in the third judicial department, entered upon an order "made July 11, 1891, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>This was an action upon a policy of insurance issued by the 'defendant.</p> <p>" On the 30th day of October, 1873, Orson Bichards executed ¡to the plaintiff a mortgage upon his grist-mill at Sandy Hill in this state, to secure the payment within three years of all ¡advances to be made by the plaintiff to him, and all bills, -drafts and notes on which he should be maker, indorser, drawer •or acceptor which the plaintiff should thereafter discount for him, with interest thereon. On the 1st day of Hay, 1875, Bichards executed and delivered a deed to Dean Sage, conveying to him the grist-mill and other real estate, in trust, to have, hold, enjoy and dispose of the same, and receive the rents, issues, profits and proceeds thereof so long as the real -estate, or any portion thereof, should remain unsold and undisposed of under the provisions and in pursuance of the trusts in the deed contained, and until such period to make application of the rents, issues and profits of the real estate as in the deed later provided; and further, in trust, to make sale of the whole or any portion of the real estate at such time or times ¡as to him, the trustee, might seem best, for cash or upon credit, ■or partly for cash and partly upon credit, or to otherwise dispose of the same; and after payment of all specific liens and incumbrances on the real estate, to make application of the .‘remaining proceeds and all the money and property received by him, first to the payment of the expenses and commissions ¡of the trustee, and then to the payment of all the debts of Biehards, pro rata, and the residue of the property was to bereconveyed by the trustee to Biehards. It does, not appear-what, if anything, the trustee ever did under the trust deed.. Biehards remained in possession of the real estate, claiming to own the same until his death, September 4, 1879. He died intestate, insolvent, not having real and personal property sufficient to pay his debts, and leaving a widow and three children, all residing at Sandy Hill. The widow and a son, Eber Biehards, were appointed administrators of the estate of the-intestate, and the widow died in May, 1881.. On the 24th day of November, 1881, the plaintiff procured a policy of insurance from the defendant upon the' grist-mill and the-machinery therein, by which policy it insured the “ Estate of O. Biehards against loss or damage by fire to the amount of $1,000 ; $750 on their frame water power grist-mill building,. $250 on fixed and movable machinery, shafting, pulleys, hangers and other machinery therein; loss, if any, payable to-Henry E. Weed, mortgagee, as his interest may appear.” No mention was made in the policy of the trust deed.</p> <p>The plaintiff procured the policy without consultation with the heirs or administrators of Biehards, and paid the premium for the same with his own money. The mortgage to him did not contain any provision about the insurance of the property,, and did not authorize the mortgagee -to insure the property at the expense of the mortgagor. The property insured was. destroyed by fire on the 4th day of February, 1882, and at that time, and also at the time of the insurance, there was due upon the mortgage about $12,000,</p> <p>The plaintiff brought this action to recover upon the policy, and upon the trial at the close of the evidence the court directed a verdict in his favor.</p> <p>Further facts are stated in the opinion.</p> <p>There is no proof of the serv ice upon the defendant of the notice of loss required by the terms of the policy. (Inman v. W. Ins. Co., 12 Wend. 460: Whitehurst v. N. C. Ins. Co., 7 Jones’ Law, 433 ; Edwards v. L. Ins. Co., 75 Penn. St. 378; Trask v. S. F. Ins. Co., 29 id. 198; R. Ins. Co. v. Burwell, 44 Ind. 460; Brown v. L. Ass. Co., 40 Hun, 101; N. Y. C. Ins. Co. v. N. P. Ins. Co., 20 Barb. 468.) No sufficient proofs of loss was ever served on the defendant. ( Weed v. L. & L. F. Ins. Co., 116 N. Y. 114; Grosvenor v. M. Ins. Co., 17 id. 394; S. Ins. Co. v. Maackers, 38 N. J. L. 514.) The trial court erred in excluding evidence offered by the defendant that the plaintiff was not the owner of the mortgage in question, but that the same was made to secure loans made by the Manufacturers’ National Bank of Troy, and held by the plaintiff as trustee 4or the bank. (Code Civ. Pro. § 449.) The acceptance by the plaintiff of the policy of insurance naming the “ estate of 'O. Bichar ds ” as the insured, and describing the property as their “ frame water-power grist-mill building and machinery therein,” was a warranty on the part of the plaintiff that the interest of said estate in the property was absolute, and this ■warranty being untrue, there could be no recovery upon the policy. ( Weed v. L. & L. F. Ins. Co., 116 N. Y. 106.) The -question of whether the deed of trust executed by Orson Bichar ds and his wife to Dean Sage was a valid deed, and conveyed '.to Sage the legal title to the property mentioned and described in the deed, including the property described in the policy of ■insurance, has been presented to and passed upon by this court •and is res adjudicada. (Weed v. L. & L. F. Ins. Co., 116 N. Y. 106.) The trust deed executed by Orson Bichards and •his wife in their life-time to Dean Sage was a valid deed of trust under section 55, article 2, chapter 1, part 2 of the Bevised • Statutes, and upon its acceptance by Sage, the trustee, conweyed to and vested in him the legal title and estate of all the lands mentioned and described in said deed, including the property in question in this action. (1 Perry on Trusts, § 305; Id. 68, § 82; Pom. Eq. Juris. §§ 153, 374, 989, 991; Savage v. H. Ins. Co., 52 N. Y. 502; Perry v. L. Ins. Co., 61 id. 214; 2 R. S. 728, § 55; Donovan v. Van DeMark, 78 N. Y. 244.) The trust to sell lands for the payment of debts is one of the few trusts reserved by the Bevised Statutes, and the one where, especially to carry out the terms of the trust, it is necessary that the legal title should vest in the trustee, and that it should not be construed as a power in trust. (Heermans v. Robertson, 64 N. Y. 332, 342.) The conveyance to Dean Sage contains no provisions whatever not warranted by the statute. (Darling v. Rogers, 22 Wend. 483, 486, 491; Irving v. DeKay, 9 Paige, 521, 527; 5 Den. 646 ; Savage v. Burnham, 17 N. Y. 561, 576; Harrison v. Harrison, 36 id. 543, 547, 548 ; Henderson v. Henderson, 113 id. 1, 14; Woodgate v. Fleet, 44 id. 20.) The deed to Dean Sage was not void as against creditors. (R. W. Co. v. Fielding, 101 N. Y. 504, 508, 509; Knapp v. McGowan, 96 id. 75, 86, 87; Tiemeyer v. Turnquist, 85 id. 516, 522, 523; Haynes v. Brooks, 116 id. 487, 491; Hine v. Bowe, 114 id. 350 ; Crook v. Rindskopf, 105 id. 476, 488; Bostwick v. Menck, 40 id. 383.) But even had this deed been void as against creditors, it was valid •as between the parties themselves, and under the conditions of .the policy rendered the same void. (Treadway v. H. M. Ins. Co., 29 Conn. 68; Baldwin v. P. Ins. Co., 60 N. H. 164.) The exact interest of the assured, the estate of O. Bichards, in the property, at the time of the issuing of the policy, was not truly stated in the policy. (Lasher v. S. J. F. & M. Ins. Co., 86 N. Y. 423; Weed v. L. & L. F. Ins. Co., 116 id. 106; Lasher v. N. Ins. Co., 18 Hun, 98 ; Rohrback v. G. Ins. Co., 62 N. Y. 47, 60.) The statement in the policy that Henry E. Weed was a mortgagee is a misrepresentation that avoids the policy. (Graham v. F. Ins. Co., 87 N. Y. 69; Cole v. G. Ins. Co., 99 id. 36; Armour v. T. F. Ins. Co., 90 id. 456; Lasher v. S. J. F. & M. Ins. Co., 86 id. 423; Weed v. L. & L. F. Ins. Co., 116 id. 106.)</p> <p>Each party having asked the court to direct a verdict, the verdict stands as a verdict of the jury, and must be sustained if there is any evidence to ■support it. (Sutter v. Vanderveer, 122 N. Y. 653; Dillon v. Cookcroft, 90 id. 649; Provost v. MeCncroe, 102 id. 650.) 'The interest intended to be insured by this policy was the interest of the mortgagee. (Trowbridge v. Horan, 78 N. Y. 442; Haight v. Mayor, etc., 99 id. 284; Clinton v. M. F Ins. Co., 45 id. 660 ; Thomas v. M. F. Ins. Co., 34 Hun, 219 ; Pitney v. G. F. Ins. Co., 65 N. Y. 6; Dakin v. L. Co., 77 id. 600; Van Allen v. F. J. S. Co., 10 Hun, 397.) The defendant did not, and under its answer cannot, prove that “ estate of O. Richards ” means “ heirs of 0. Richards.” (Marks v. N. F. Ins. Co., 24 Hun, 565 ; 91 N. Y. 663 ; Van Schaick v. N. Ins. Co., 68 id. 434; Woodruff v. I. F. Ins. Co., 83 id. 133; Stein v. N. F. Ins. Co., 89 id. 316 ; Baley v. H. F. Ins. Co., 80 id. 23.) If it be suggested that under this construction of the meaning of the expression, the administrator had no insurable interest in this property, I reply that no such ground appears in defendant’s motion for a nonsuit; and second, that an administrator of an insolvent estate has an insurable interest in the real estate. (Herkimer v. Rice, 27 N. Y. 163 ; Cone v. N. F. Ins. Co., 60 id. 619 ; Wood on Fire Ins. 540; Lazarus v. Com. Ins. Co., 19 Pick. 81.) The expression “ estate of O. Richards ” is broad enough to cover truly the interest of Dean Sage as trustee. The trust deed is void. The title remained in Orson Richards and descended to his heirs. (2 R. S. chap. 1, art. 2, §§ 55, 58, 59; Rapalee v. Stewart, 27 N. Y. 315; Cooke v. Platt, 98 id. 38; N. Y. D. D. Co. v. Stillman, 30 id. 194; Chamberlain v. Taylor, 105 id. 192; Darling v. Rogers, 22 Wend. 483 ; Tilden v. Green, 40 N. Y. S. R. 512.) The deed is void under the Statute of Uses and Trusts, and no title passed to the trustee, because the deed is void upon its face as against creditors. (Rapalee v. Stewart, 27 N. Y. 310.) A trustee of an express trust may sue alone. ( Walsh v. W. M. Ins. Co., 32 N. Y. 427; Noe v. Christie, 51 id. 270.) It was competent for the jury to find that the defendant waived the omission on the part of the assured to give the defendant notice of loss forthwith. (Brothers v. C. Ins. Co., 20 N. Y. S. R. 207; 121 N. Y. 659.)</p>

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

This action was brought to compel defendant to issue to plaintiff a certificate for 1,050 shares of its capital stock, or to pay the par value thereof. The facts, so far as material, are stated in the opinion. It was admitted on the pleadings that the defendant had positively refused to issue any stock to the plaintiff or to recognize him as a shareholder; and this refusal made a demand superfluous and useless.

The nature of the action and the facts, so far as material, are stated in the opinion. None of the exceptions to findings of fact can be sustained on the ground that such findings, or any of them, are without evidence to sustain them. (Code Civ.

The proceeding was commenced by the board of street opening and improvement of the city of New York for and on behalf of the mayor, aldermen and commonalty of the city of New York, for the purpose of opening that part of Alexander avenue extending from Harlem river to Third avenue in the twenty-third ward of the city of New York, as a first-class street, pursuant to several acts of the legislature of the state.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 15, 1892, which affirmed an order of Special Term denying a motion to change the place of trial.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant’s right to have the place of trial changed when the wrong county is designated in the complaint, is an absolute right. (Veeder v. Baker, 83 N. Y. 156.) Under such circumstances a statute affecting that right should be liberally construed. (Code Civ. Pro. § 3345.) The object of the time limit of section 936, was to Require prompt action by the defendant. (Duche v. B. G. S. Co., 13 How. Pr. 518; Ostrander v. Conkey, 20 Hun, 421; Townsend v. Hillman, 18 Civ. Pro. Rep. 213; Veeder v. Baker, 83 N. Y. 156.) The construction contended for by the appellant is within the strict letter of the statute. (Fry v. Bennett, 3 Bosw. 200; 28 N. Y. 324; Bank v. Garlinghouse, 4 How. Pr. 174; Code Civ. Pro. § 3343.)</p> <p>The order is not appealable; it does not affect a substantial right. (McCoun v. N. Y. C. R. R. Co., 50 N. Y. 176, 177; People v. N. Y. C. R. R. Co., 29 id: 418, 421; Security Bank v. Bank of Commonwealth, 2 Hun, 287; Code Civ. Pro. §§ 129, 483, 982, 983, 985 ; Goldberg v. Utley, 60 N. Y. 427; Van Slyck v. Hyatt, 46 id. 231.) But on the merits the order should be affirmed. A timely demand is a condition precedent to the motion. (Houck v. Lasher, 17 How. Pr. 520; Code Civ. Pro. §§ 964, 986, 1778 ; Duche v. B. G. Co., 2 Civ. Pro. Rep. 268.) The section plainly says answer; it is not ambiguous and there is no necessity for any construction. But if the question amounts to a construction of the section, it should be strictly construed. (Code Civ. Pro. §§ 499, 985; Hinz v. Starin, 1 N. Y. S. R. 553.) Even if the demand be in time, if served with an amended answer, in this case the amended answer was not served in time. (Code Civ. Pro. §798; Ward v. Gillies, 19 Civ. Pro. Rep. 20.)</p>

This action was brought to recover damages for injuries to plaintiff from a fall by stumbling when crossing defendant’s track upon a crosswalk at the intersection of Front and Wall streets in the city of New York. The plaintiff, in crossing over the defendant’s track, at the intersection of Wall and Front streets in New York city, fell and broke his knee cap.

The nature of the action and the facts, so far as material, are stated in the opinion. The sole purpose of the questions propounded by defendant to the physician was to ascertain the dates of his visits to his patient, and the exclusion of his testimony was error. (Breisenmeister v. Supreme Lodge, 19 Ins. Rep. 889; Code Civ. Pro. § 834.) The health report should have been admitted in evidence. (Code Civ.

This action was brought to charge a general legacy on real estate of which the intestate died seized. The facts, so far as material, are stated in the opinion. The court erred in charging legacy to plaintiff on the land. (Brill v. Wright, 112 N. Y. 129; Myers v. Eddy, 47 Barb. 263; Bevan v. Cooper, 72 N. Y. 517; Lupton v. Lupton, 2 Johns.

This action was brought to recover a balance of an account originally due plaintiffs from one Clinton M. Ball for services in the construction and fitting of a dynamo and other electrical appliances, which it was claimed defendant had agreed to pay. The facts, so far as material, are stated in the opinion. The case at bar does not fall within the Statute of Frauds.

<p>The common council of the city of Buffalo, in pursuance of authority given by its charter, passed and caused to be published a resolution giving notice of an intention to order a street to be paved “forty-two feet wide, and directed the city engineer to prepare plans and specifi-cations. and to advertise for sealed proposals. A surface railroad was in operation at the time, having a track in said street. By its charter it was required to keep the surface of the street between the rails in good -order and repair. The plans and specifications prepared by the engineer •did not include the space between the rails. The advertisement for proposals, while describing the work as being forty-two feet wide, stated that it was to he done in “accordance with the plans and specifications on file.” Upon report of the engineer of proposals received, the common council passed resolutions determining the expense of the improvement and directing the work to bq done “ in accordance with plans and specifications on file,” directing the engineer to contract with the lewest bidder at his bid, and directing the city assessors to assess that sum upon the real estate benefited. The contract, as made, excluded from the work five feet, the space between the rails. That part so excluded was not repaved by the city, and no cost for repaving it was included in the assessment. In an action to set aside assessments upon plaintiffs’ property for said improvement, plaintiffs claimed the assessments to be void because the contract was only for the repavement of thirty-seven feet instead of forty-two feet as ordered. Held, untenable; that the mention in the resolution authorizing the work of forty-two feet was merely descriptive of the width of the street and not directory as to the amount of the improvement; also, that assuming to the contrary the subsequent ordering of the work in accordance with the plans which omitted the five feet was a ratification and adoption thereof, and this the common council had power to do, 'as the departure from the original intent was publicly advertised, and there was no possibility of prejudice from fraud or collusion.</p> <p>Also held, that if there was a technical irregularity in the proceedings, plaintiffs, in the absence of evidence showing a substantial injury, were not in a position to complain, and so, could not maintain the action.</p> <p>It appeared that lands on the north side of the street were assessed a little more than on the south side, because of the fact that the railroad track was on the south half of the street. Held, that this was a matter within the judgment and discretion of the assessors, and their determination was conclusive.</p> <p>The assessors’ notice of the completion of the assessment-rolls was required by the city charter to be published in five successive numbers of the official paper. (§ 5, tit. 6, chap. 519, Laws of 1870.) It was published five successive week days, omitting an intervening Sunday edition. The evidence showed that said edition, although numbered consecutively with the week-day issue, -was furnished and sold under different terms from that issue. Held, that the week-day issue was the official paper called for.</p>

The petitioners asked for the appointment of a trustee under the will of Oliver Butterfield, deceased, in the place of Bhoda Butterfield, deceased. Said Oliver Butterfield died July 1, 1868, leaving a will, the material provisions of which are as follows: “First. After all my lawful debts are paid and discharged, I give and bequeath to my wife Bhoda, one-third of all my real and personal estate of every name and nature. “Second,.

This action was brought by plaintiff, as a taxpayer of the town of Oswegatchie, St. Lawrence county, to restrain defendants, .the Berlin Iron Bridge Company and Joseph E. Wagner, the supervisor of said town, from carrying out a contract claimed by them to have been made for the erection of a bridge across the Oswegatchie river, in said town, and to have said contract adjudge! illegal and void.

<p>The provisions of “ The Ballot Reform Act” (Chap. 263, Laws of 1890, as amended by chap. 296, Laws of 1891), providing for the printing of an official ballot at the public expense, do not prevent a voter from voting for any candidate whom he chooses; he may, as provided in the act (§ 25), “ write or paste upon his ballot the name of any person for whom he desires to vote for any office,” although such person has not received a proper nomination by any political party.</p> <p>In proceedings by mandamus to compel a board of town canvassers, to reassemble and declare the result of a town meeting, it appeared that the relators were nominated for the several town offices at an independent meeting or caucus, and were voted for by means of paster ballots attached to the official ballots. These ballots had printed upon them the name of the candidate for the office of excise commissioner; they were rejected by the board. Held, error; that while, as excise commissioners are required to be voted for on a separate ballot, the votes cast for the candidate for that office could not be counted, the presence of his name on the paster ballots did not vitiate them; that its effect was not to mark or identify the ballot within the meaning of the act; that the relators were entitled to have said ballots counted and declared by the board; and, so, that a peremptory writ was properly ordered.</p>

This action was brought against defendant, the publisher of certain novels of which plaintiff was the author, to compel it to account to him for the royalties on the sale of such novels under certain contracts for their publication and sale made between plaintiff and defendant, and to declare such contracts to be determined and at an end, owing to the failure of said defendant to render any account or pay any royalty as provided for in said contracts.

This was an application by Charles Wolff, a purchaser at a foreclosure sale, to be relieved from his purchase on the ground that the interest of the wife of Moritz Bauer had not been duly conveyed.

This was a proceeding to vacate an assessment for paving Fifty-eighth street, in the city of New York, between Sixth and Ninth avenues, which was confirmed July .22, 1872. On April 22, 1872, the petitioner served upon the corporation counsel a petition to vacate the assessment. Attached thereto was a notice that the petition would, on October 24, 1872, be presented to a justice of the Supreme Court and a motion made that its prayer be granted.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 7, 1891, which reversed a judgment of the Court of Oyer and Terminer entered upon a verdict convicting the defendant of the crime of extortion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 16, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

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