Volume 134 — New York Reports

It appeared that John II. W. Cadby, who was indicted in Columbia county in April, 1886, for the offense of forgery, had before then fled from the county to the dominion of Canada; that the relator, who was district attorney of that county, having learned that Cadby was at Hamilton, in the province of Ontario, went there in March, 1886, for the purpose of instituting proceedings in the courts of that dominion to secure his apprehension, with a view to extradition.

<p>In an action by an abutting owner of property on a street in the city of New York, to restrain the operation and maintenance therein by defendants of an elevated railroad and for damages, the following facts appeared: S., the former owner, brought an action M law to recover damages for the permanent depreciation in value of his premises; he having died before trial, the action was revived in favor of his executors, and a judgment was rendered against the objection of defendants for the permanent as well as the temporary damages. Subsequently S.’s will was held to be invalid; plaintiff purchased the premises in question, and in this action a judgment was rendered which awarded the injunction prayed for, unless defendants paid the permanent damages as fixed. Held, no error; that upon the death of S. intestate, the property in suit, with the easements annexed, vested at once in his heirs at law, and thereafter all damages accruing belonged to them and their successors in title, and they were entitled to recover the same although erroneously included in the former judgment.</p>

The plaintiff, a corporation owning the steamship Bolivia, alleged that the defendant, a corporation of the state of Massachusetts, having (by transfer) a charter from the. republic of Mexico, owns and operates railroads in that republic, entered into an agreement with the plaintiff for the transportation by the latter of certain Mexican pilgrims from the port of Bew York to the city of Borne, Italy, and return, and undertook that the number should not be less than 250, to…

<p>Defendant’s general agent issued a policy of fire insurance which contained provisions to the effect that it should become void if the premises insured became vacant without the written consent of the company indorsed thereon, and that no part of the policy could be waived except in writing, signed by defendant’s secretary. The premises insured having become vacant, the insured informed said agent of the fact and asked how it would be in case the buildings insured were burned, and was informed it would be all right. The buildings were thereafter burned. In an action upon the policy, held, that the stipulation as to occupancy was an express warranty, and, not having been performed or waived, the policy was void.</p>

<p>A voluntary conveyance of real estate from a husband to his wife is good as against subsequent creditors, unless made with intent to defraud them, or made secretly so that knowledge thereof was withheld from them and they dealt with the grantor upon the faith of his owning the property transferred, or the transfer was made with a view of entering into some new and hazardous business, the risk of which the grantor intended should he cast upon those giving him credit in such business.</p> <p>In an action by judgment creditors of defendant K. to set aside as fraudulent a deed voluntarily executed by him to defendant D. and a deed executed by the latter to defendant M., the wife of K., which deeds were recorded three days after their execution, it appeared that at the time of the transfer K. was negotiating for the purchase of a business, which purchase was consummated, and the indebtedness upon which plaintiffs’ j udgments were recovered was incurred in such business more than a year after the conveyances. It did not appear but that K. was solvent at the time when he conveyed, or that the business was a hazardous one, or that plaintiffs, in giving him credit, relied upon any representation of his or any apparent ownership of the real estate. Held, that a finding that the deeds were good and valid conveyances as against plaintiffs was justified.</p> <p>K., at the time he completed the purchase of the business, represented to the vendor that he owned the real estate conveyed; his wife became surety for the indebtedness incurred on the purchase; this was all subsequently paid, thereafter the indebtedness to plaintiff was incurred. Held, that this representation did not indicate a fraudulent intent.</p> <p>After the plaintiffs rested on the trial, defendants moved to dismiss the complaint on the ground of failure to prove facts constituting a cause of action. The court denied the motion, stating, however, that as the case stood, he would not feel justified in finding that the conveyance was with intent to defraud creditors. Ho evidence was offered by defendants. Both parties submitted proposed findings and the court dismissed the complaint, stating the dismissal to be on the merits. ■ Held, that the case must be deemed to have been submitted in such a way as to permit the court to weigh the evidence and determine the facts, and so to dismiss upon the merits.</p>

The action was to recover damages for the alleged breach by the defendants of the following contract: “ ISTew York, October 27th, 1879. “ Sold for account for Messrs. Sheldon Banks & Co. to Messrs. F. H. Leggett & Co. 1,700 piculs of Free Preanger coffee to arrive, the name of the vessel or vessels to be given as soon as known to the sellers, at 22 cents per pound. Sound and made sound. Basis four month’s notes from average delivery in store.

<p>Appeal from judgment entered on order of the general term of the supreme court, in the fifth judicial department, affirming judgment entered upon report of a referee dismissing complaint.</p>

<p>To enable one who has title to the land of a public highway, subject to the public easement, to maintain ejectment therefor, he must show that defendant has taken exclusive possession, or imposed upon the land some burden inconsistent with the public easement.</p> <p>F., who owned to the center of a highway, deeded to W., the adjoining owner on the opposite side, a strip of land along it and all his right, title and interest therein. One object of the conveyance was to enable W. to straighten the highway and the deed recited that the grantee was to. hold the granted strip “ for the uses and purposes of a public road or highway, and for no other use or purpose; ” it also contained a reservation to the grantor of “the same privileges on said public road or highway as they now have on the highway as at present located” in front of F.’s land. W. thereupon straightened the highway and built a retaining wall within the strip conveyed, along the line of F.’s land, and for over twenty years the strip was used as a highway and W.' and his grantee when occasion required repaired the wall. Defendant, who succeeded to F.’s title, took possession of the wall to the exclusion of the plaintiff, who had succeeded to "W.’s title and denied his right to maintain it. In an action of ejectment, held, that as when the deed was executed the privileges of F. on the highway were unrestricted by any dominant right of the owner on the opposite side, under the recital and reservation in the deed, his right in the altered highway was equally unrestricted; that this right was restricted by the wall and its maintenance was a private nuisance which defendants had the right to abate; and so that a judgment awarding plaintiff the land upon which the wall stands and restraining defendants from interfering with it was error.</p>

This action was brought to have adjudged void a conveyance of real estate made and delivered by the plaintiffs to the defendant and the cancellation thereof directed, and that plaintiffs and one Mary Ann Smith Madden be decreed to be seized of the land described therein. The facts, so far as material, are' stated in the opinion.

<p>Defendants contracted to sell to plaintiff a boat load of lumber of specified kinds and quality, to be delivered at plaintiff’s dock; the latter refused to accept the lumber on arrival, on the ground that it was not of the quality specified. Defendants’ agent thereupon inspected the lumber and pronounced it of inferior quality, and at his request, plaintiff permitted it to be unloaded on the dock and stored for defendants’ benefit, plaintiff paying the freight and duties which, under the contract, he agreed to do, deducting the same from the purchase-price. In an action to recover damages for breach of the contract, held, that plaintiff was entitled to recover the amount paid by him for freight and duties, also for storage of the lumber, and damages for failure to deliver lumber of the quality specified; and that the damages were properly assessed upon the basis of the difference between the value of the lumber contracted for at the place of delivery and the contract price.</p>

<p>On November 37, 1888, the parties entered into an agreement reduced to writing, but not signed by defendants, by which defendants, who were commission merchants, agreed to pay to plaintiff a specified commission on all goods the latter “could influence” to be sent to them for sale for one year, beginning. December first, thereafter, either party having the privilege to terminate the contract by notice in June. The contract was terminated by defendants in June, under the option. In an action upon the contract, held, that the reservation of the option took it out of the Statute of Frauds.</p> <p>It seems that had it not been for the option, the contract would have been void, under the statute,</p>

<p>Where a municipal assessment for a local improvement is valid upon its face and an apparent lien upon the land, but is in fact void by reason of facts outside the record, and the owner in ignorance of those facts has involuntarily paid the assessment, he may in one action seek to set aside the assessment and recover back the money paid.</p> <p>As the setting aside of the assessment is a mere incident to the cause of action to recover the money paid, that accrues when the assessment is paid and the Statute of Limitations then begins to run.</p> <p>Where, therefore, an action was brought to recover back such an assessment more than six years after the assessment was paid, held, that it was barred by the statute, although brought within six years after judgment in an action setting aside the assessment.</p>

<p>Appeal from judgment of the G-eneral Term of the Superior Court of the city of Kew York, entered upon an order made December 1, 1890, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>The parties to this action entered into a written agreement as follows:</p> <p>"Memorandum of agreement made this 24th day of April, 1884, between the Phcenix Bridge Company of the first part, and M. A. Case, of Brooklyn, Kings county, of the second part. M. A. Case hereby agrees to sink about 154 Phcenix Wrought iron piles, about ten feet deep, into the sand for an iron pier at Cape May, and he further agrees to place the iron traverse girders on top of the piles, secure the same and put in place all traverse and lateral rods and struts.</p> <p>“ In consideration of which the Phoenix Bridge Company agrees to pay to Mr. M. A. Case for all the above specified work, at the rate of twenty-seven dollars and fifty cents for every pile. The Phoenix Bridge Company also agrees to deliver all the iron at the site of the pier, and to furnish a competent engineer to ‘give lines’ and ‘levels.’ Payments to. be made to Mr. M. A. Case two-weekly as the work progresses.</p> <p>“ Mr. M. A. Case further agrees to put all iron in place in thirty days after sufficient iron has been delivered, and provided that the iron is delivered in regular order and quantity, and that the floor is laid as fast as required for the erection-of the iron.</p> <p>“ In witness whereof both parties have signed their names.</p> <p>“THE PHGEHIX BRIDGE COMPAHY,</p> <p>“ By A. Bonzano.</p> <p>“M. A. CASE,</p> <p>“ By Henry Case,</p> <p>“ S. IT. Bonner.” “Attorney.”</p> <p>On May first defendant notified plaintiff to be ready to begin work on May fifteenth.</p> <p>The iron piles. required were not delivered at the site of the pier until May twenty-sixth, and on May twenty-seventh work was commenced.</p> <p>It was not completed until the month of August.</p> <p>Thereafter plaintiff began this action to recover (1) an unpaid balance of the contract price for the work; (2) for extra work and materials furnished at defendant’s request during the erection of the pier; (3) damages caused by defendant’s delay in delivering the iron and laying the floor of the pier.</p> <p>Ho defense was made to the first two causes of action.</p> <p>To the third defendant answered by a general denial excepting an admission that an agreement was made between the parties on April 24, 1884.</p> <p>An order was thereafter made severing the causes of action, and judgment having been entered on the two first named, the action was continued as if it had originally been brought on the third cause of action.</p> <p>The referee found as a fact that plaintiff was delayed by defendant in the performance of the work for twenty-two days, during which time she was obliged to keep a number of men and her tools and machinery ready to engage in the work, and to pay said men their wages and board, and awarded damages for such expen diture and the value of the use of the tools and machinery.</p> <p>Further facts appear in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 14, 1890, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>As soon as arbitrators, appointed under the Code of Civil Procedure (§ 3365) have made and delivered their award they become functus officio; they have no power thereafter to re-judge the case and alter the award; and this, although it was not acknowledged or proved as required by said Code (§3373).</p> <p>An award made by arbitrators without having taken the oath prescribed by the Code (§ 3369) before the hearing of any testimony, unless this was waived by the parties, is invalid. ,</p> <p>It seems, that to establish a waiver of such oath the written consent of the parties to the submission, or their attorneys, is requisite.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 21, 1890, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>• The nature of the action and the facts, so far as material, are stated in the opinion.</p>

In January, 1841, David H. Bobertson purchased, in the name of Thomas H. II. Messenger, at a mortgage foreclosure sale, two lots in Harlem for fifty dollars. January 18, 1841, the master in chancery conveyed the premises to Messenger by a deed which was recorded January 19, 1841. Bobertson made the purchase, took the deed, procured it to be recorded and paid the consideration, fifty dollars, without the knowledge or authority of the grantee.

This action was brought to recover from the defendants, as general partners composing the firm of Spencer & Perkins, a demand of the plaintiffs against that firm for goods sold and delivered. The defendants Eiseman alleged in their answer that said firm was a limited partnership, composed of themselves as special partners and of Sidney S. Spencer and George E. Perkins as general partners.

<p>One dealing with an agent, without knowledge of limitations upon -his authority, has the right to rely upon his representations as to the extent, thereof; and if he contracts with the agent, relying upon his representations, and it appears that the latter exceeded his authority, and that the principal repudiated his acts, the agent is liable to the person so dealing with him for the damages sustained.</p> <p>It seems the liability of the agent is based not on the ground that the contract is his own, but on the ground that he warrants his authority, and so, his liability is not necessarily measured by the contract, but embraces all injuries resulting from his want of power.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made February 11, 1890, which affirmed a judgment in favor of defendants 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>

This action was begun to : (1) Restrain the defendant from interrupting the flow of water from a spring to the plaintiff’s premises. (2) Compel it to restore the spring and the conduits, connecting it with the plaintiff’s premises, to their former condition. (3) Recover the damages sustained. The facts, so far as material, are stated in the opinion.

<p>K, who held the title to certain premises subject to the lien of a mortgage, executed to the mortgagor a bond by which he obligated himself to pay any deficiency arising on foreclosure of the mortgage. K. conveyed the premises to defendant L., who, by his deed, assumed and agreed to pay the mortgage, which the deed stated was held and owned by plaintiff, and the amount of which was reserved as a portion of the consideration. In an action to foreclose the mortgage, held, that plaintiff was entitled to judgment against L. for any deficiency; that .L.’s covenant to pay the mortgage might be regarded as indemnity toll., and to that extent he stood in the relation of surety to the latter, and for the purpose of relief, founded upon the doctrine of equitable subrogation, might be so treated by the plaintiff; also that L.’s promise to K. was for the benefit of plaintiff, and had the requisite consideration to support it.</p> <p>The judgment below was in favor of L., holding that he was not liable for the deficiency. Held, that it was reviewable here; that such portion of the judgment was not interlocutory, but final.</p> <p>In foreclosure actions the question of liability for a deficiency must be determined by the judgment.</p> <p>It seems the liability of a grantor of mortgaged premises to pay a mortgage thereon is essential to the creation of a liability on the part of his grantee under an assumption of the mortgage by the latter, and it is also essential that the deed be effectual to convey the- title to such grantee.</p>

July 6, 1872, John H. McCunn died leaving a last will and testament and two codicils, hy which he attempted to dispose of all of his property. He nominated Thomas McCunn and James M. Gano as executors, and Jane W. McCunn as executrix, of his will, which was probated in December, 1872, and letters testamentary were issued to the persons so nominated, who immediately entered upon the execution of their trusts.

In 1870, the plaintiff, Fowler Willson and Fowler Willson, Jr., executed a written contract, not under seal, by which the plaintiff agreed to sell, and the Willsons agreed to purchase, land at an agreed price, to be paid for in annual installments, with annual interest, the last payment falling due April 1, 1880 ; upon which date the plaintiff, upon receiving full payment of the purehase-price, was to convey the land to the vendees by a warranty deed.

This action was brought to recover damages in the nature of demurrage for the unreasonable detention of plaintiff’s boat. A member of the firm of Merritt Clark’s Sons, of Derby, Ct., called on the defendants on the 7th day of May, 1888, and purchased a cargo of coal, at the same time directing the ■defendants to advise Captain Van Etten, this plaintiff, to call upon them in relation to the freight of the cargo. Merritt Clark’s Sons fixed the rate of freight.

<p>In an action to reform a contract, or where in an action upon the contract defendant asks to have it reformed, upon the ground that owing to a mistake it fails to express the agreement between the parties, while the burden is on the party alleging the mistake of clearly establishing it by satisfactory proofs, this does not require the enforcement of the rule governing the trial of criminal actions; i. e., that the case must be established beyond a’reasonable doubt.</p> <p>Accordingly held, when in an action on a contract the answer set up a mistake and asked for a reformation of the contract, a refusal of the court to charge “that the burden of proof is on the defendant to satisfy the jury beyond a reasonable doubt that there was a mutual mistake in this case,” was not error.</p> <p>The authorities as to the degree of proof required in such cases collated.</p>

<p>The power to improve rivers and arms of the sea forming the highways of commerce is vested in the United States government, and where congress by statute provides for the exercise of such power in a manner sufficient and complete according to that government’s judicial test, it is complete under that of this state.</p> <p>Where a contractor doing, in appropriate "and proper manner, public work required by a contract with said government, which it is authorized to make, and exercising due care in the prosecution thereof, injures private property, he is not liable therefor.</p> <p>Defendant, while engaged under contract with the United States govern- < ment, in the work of removing rock, which was an obstruction to naviga-1 tion in New York harbor, in blasting, injured plaintiffs house; this was 3,000 feet distant from the place of the explosions, and the injuries were caused not by the casting of any material upon the premises but simply by the vibration of the earth or air or both. In an action to recover damages, held, that in the absence of any proof of negligence in the ( manner of doing the work, defendant was not liable; and that a charge to the jury that if the explosions injured plaintiffs house, defendant was liable without regard to the question of negligence, was error. ¡</p> <p>Defendant while proceeding to give evidence showing that the contract was authorized by the federal government was interrupted by the court with the suggestion that the authority could not be disputed and, thereupon, he desisted from giving further evidence. Held, that plaintiff could not present the question as to such authorization upon appeal.</p>

<p>In an action to recover a penalty for an alleged violation of an ordinance of plaintiffs common council, prohibiting the erection, without permission of that body, of a wooden building within the fire limits prescribed, as provided by the city charter (Tit. 3, § 8, sub. 4, chap. 519, Laws of 1870), it appeared that said common council having, by resolution, given defendant permission to erect wooden buildings upon land owned by him within the fire limits, he entered into contracts .therefor and began the work. Thereafter the common council passed a resolution which stated that the former resolution was rescinded upon filing a good and sufficient bond to save the city harmless from any liability for damages. Defendant continued the work. Held, that when defendant entered upon the construction of the buildings pursuant to the permit he acquired a vested right therein of which the common council had no power to deprive him; and so, that the action was not maintainable.</p> <p>A bond was executed which was approved by the mayor and filed with the comptroller. Held, that the common council reserved to itself the right to determine whether the bond required to be given by the rescinding resolution was sufficient, and until a bond was approved by it the resolution was not operative; and so, conceding that it had power to rescind the permit, it remained in full force.</p>

* This was an action by an abutting owner to recover damages arising from the interference with plaintiff’s easement in a street in the city of Yew York, by the construction and maintenance therein of an elevated railroad. The facts, so far as material, are stated in the opinion.

This was an action to recover from the defendants George W. Adamo and David B. Young, formerly composing the firm of Adams ■& Young, the sum of $5,892.28, with interest from May 1, 1886, due and owing for moneys previously advanced for freights on goods sold and delivered by plaintiff while residing in Germany. The summons and complaint were personally served in June, 1886, on each of the defendants, who thereupon appeared generally in the action by separate attorneys.

The main purpose of the action was to require the defendants to transfer to the plaintiff upon tlieir books six shares of stock in the Standard Oil Trust on the surrender of the certificates of such shares held by him.

This was an. action for negligence, in that plaintiff, a sailor in the employ of defendant upon its ship, while in obedience to orders he was operating its which—an alleged unsafe machine—had his hand caught in the cog-wheels thereof, and the ends of four fingers taken off. November 9, 1886, plaintiff at New York engaged as an able-bodied seaman to serve on board defendant’s ship, the Alvena.

This was an action hy the plaintiffs, as holders of certain scrip issued by the New Ybrltand Texas Land Company (Limited), in behalf of themselves and all other scripholders similarly situated, to recover from the directors of that corporation, in its name, the sum of $1,100,000, and to compel the application thereof to the retirement of outstanding scrip and for other relief.

On May 24, 187.1, James Drake died at the city of Hew York, seized in fee of eleven houses and lots in that city, which were a part of a large estate left by him.

<p>Stockholders of a private corporation may be denied equitable relief against acts of the corporation which do not affect the public, but only the interests of its stockholders, and which, although ultra vwes, are not per se illegal or malum prohibitum, where the stockholders asking for relief, have assented to those acts, or have acquiesced therein with full knowledge of the facts.</p> <p>A manufacturing corporation may discontinue its operations, when unprofitable, for the purpose of protecting its shareholders from further loss.</p> <p>In an action by a trustee of a manufacturing corporation to set aside certain transfers of its property alleged to have been made or authorized by the trustees as such to themselves individually and for an accounting, the following facts appeared: Said corporation was organized for the purpose of manufacturing carpets by machinery covered by certain letters patent, and issuing licenses for the use of the invention; its capital stock was §40,000, which was issued to defendants, the owners of the letters patent, as the consideration for the assignment by them of the said letters to the corporation. The actual value of the patent was much more than the sum specified, and the transfer was made without regard to its value, as a convenient mode of holding title and for the exclusive benefit of said owners, who, as sole stockholders and trustees of the corporation, carried on the business of issuing licenses to use the invention and collecting royalties. Subsequently concluding to go into the business of manufacturing, the defendants, as trustees, transferred back to themselves the letters patent, they surrendering the stock so issued. The stock of the corporation was increased to §600,000, all of which was issued to defendants, they paying therefor §250,000 in cash, and for the residue granting to the corporation a license to manufacture under the patent, on payment of a specified royalty. The court found this transaction was in good faith and with no intent to defraud any future holder of the stock, and that §350,000 of stock was not an inadequate consideration for the license. Defendants thereafter assigned to plaintiff and another §100,000 of the stock, as the consideration of their assignment to the corporation of certain other letters patent. The assignees were informed of all the facts relating to the re-transfer to defendants and the consideration for the issuing to them of the increased stock. Stock was also sold to another person who had knowledge of the facts. Plaintiff was elected a trustee. The corporation erected manufactories and carried on the business for a time, which resulted in a loss. Defendants and another, composing a majority of the board of trustees, as such, adopted a resolution to sell the stock on hand, lease the manufacturies, and to secure defendants for advances made by them by mortgage on the property of the corporation, which was executed with the assent of two-thirds of the stockholders. Defendants were the only creditors of the. corporation, and the court found said resolution was adopted in good faith without intent to injure, and that it did not affect plaintiff, and was for the best interests of the corporation and its stockholders. The mortgage was thereafter foreclosed and the property bid in by one of the defendants. Meld, that the complaint was properly dismissed.</p>

<p>The complaint herein set forth two causes of action, one, to rescind a purchase of stock and recover back the purchase-price upon the ground that defendant, who was employed as agent to purchase-stock for plaintiff, sold to him his own stock, retaining the purchase-price ; the other, to recover damages for false representations inducing the purchase. Upon the trial evidence was given in support of both causes of action. The court submitted to the jury the question of false representations, which was found in favor of defendant, but refused to submit to it the first cause of action. Held, error; that while the two-claims were inconsistent and plaintiff was not entitled to recover upon both, he was entitled, and the court should have requested him to elect upon which he would proceed, and should not have elected for him.</p> <p>Plaintiff proved the averments of the first cause of action as to the employment of defendant to purchase, as his. agent, the shares of stock specified and the transfer to him of defendants own stock; also, that thereafter the assets of the corporation were conveyed to-another corporation, the stock of the former being convertible-into the stock of the latter, that plaintiff caused his to be so converted; that subsequently discovering that defendant had sold him his own stock, plaintiff, for the purpose of making a tender, borrowed the same amount-of stock of the old company which had not been converted, tendered it. to defendant and demanded repayment of the purchase-price, which was-refused. Held, that plaintiff had the right to rescind on discovery of the fraud; that the stock borrowed not being distinguishable from the stock purchased, and plaintiff having acquired the right to transfer it to-defendant and give a good title thereto, the tender was good.</p> <p>Also held, that the question whether or not the rescission was in time should have been submitted to the jury.</p>

<p>P. foreclosed a mortgage upon certain real estate owned by 0. and bid in the premises on the sale; he théh agreed with O. that the latter might exchange the property and have all he could realize after paying plaintiff’s claim, O. effected an exchange with E. for certain personal property, upon which was a chattel mortgage, E. to pay plaintiff’s claim. E. gave to 0. her promissory note, indorsed for her accommodation by defendant McL. to be used, as defendant’s evidence tended to show' for the purpose of raising money to pay the chattel mortgage. 0. gave to E. a chattel mortgage to secure a balance on the exchange. 0. indorsed and delivered the note to plaintiff receiving the amount in cash less the discount and a small amount applied on an indebtedness to plaintiff. Of the money paid, $600 was applied on the mortgage. In an action upon the note, defendant's evidence was to the effect that plaintiff had knowledge when he took the note, of the purpose for which it was given. The case was tried by defendant upon the theory that plaintiff was not entitled to recover anything. Judgment was directed for the amount of money paid thereon by plaintiff. Held (Bradley, Yarn and Haight, JJ., dissenting), no error.</p>

On April 23, 1884, the plaintiffs entered into contract with the Central Park Building Company of the city of Mew York, whereby they undertook to put into four apartment buildings, known as “ Valencia,” “ Tolosa,” “ Granada,” and “Saragosa,” complete steam heating and ventilating apparatus for the sum of $25,000, which the company agreed to pay as follows: “ 1st. Payment when all the steam and return pipes are in............................. $Y, 666 66 “ 2d. Payment when all…

This action was brought, in the name of the people without1 a relator, against a domestic business corporation and its trustees, to compel the latter to account for their official conduct in the management and disposition of its property; to require them to pay over to it the value of all property acquired by themselves, transferred to others, lost or wasted by a violation of duty on their part, and to remove each of them from his position as trustee of the company.

This action was brought to obtain a construction of the twenty-first clause of the will of Gardiner S. Howland, deceased, which clause and the facts, so far as material, are set forth in the opinion.

The action was brought to obtain conveyance of certain lands and an accounting for the proceeds of certain other lands, sold by the defendant, all the subject of a trust arising out of the conveyance made by one Osmin W. Atkins, in which liis. wife joined, to the defendant. This conveyance was made by deed absolute in terms, and covered lands in the county of Kings.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 28, 1890, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to recover damages caused by the erection and maintenance by defendants of an elevated railroad in front of plaintiffs’ premises on Front street, in the city of Eew York, and to restrain defendants from operating their road in front thereof unless the fee damages are paid.</p> <p>The facts, so far as material, are stated in the opinion.</p>

This was a special proceeding instituted by a taxpayer of the town of Sodus, Wayne county, to compel the county treasurer of said county to execute the provisions of section 4 of chapter 907, Laws of 1869, as amended by chapter 283, Laws of 1871, by investing the amount of taxes (other than school and road taxes) received by him for the year 1881 collected on the assessed valuation of two railroads in said town, to aid in the construction of which the town had issued bonds.

This was an action to restrain the sale of plaintiff’s property in the city of Brooklyn for the taxes of 1886, and to compel the cancellation of the tax of record. The facts,' so far as material, are stated in the opinion,

This action was brought upon a policy of marine insurance (1) to recover the damages alleged to have been sustained by the wetting of a cargo of corn (2) or to recover as for a conversion of the property. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 6, 1890, which modified a verdict for the plaintiff directed by the trial court, by deducting therefrom $9,188, and in all other respects overruled the exceptions directed to be heard in the first instance at the General Term.</p> <p>The action was to recover for money expended by the plaintiff in the removing the debris and carcasses of dead horses from premises on West Thirtieth street. New York city, immediately after a fire which occurred July 25, 1877, and destroyed the stables upon the premises and caused the death of thirty-seven horses which were therein at the time. The defendant was the owner of the premises; the plaintiff was his tenant under a written lease for the term of five years from November 1, 1872. The lease contained the clause that the plaintiff “at his own proper cost, charge and expense, will comply with all the rules, orders and requirements of the department of buildings of the city of New York, and the board of health of said city.” Immediately after the fire a notice was served upon the defendant by the board of health requiring him to remove the debris. The defendant sent the notice to the plaintiff in a letter which, after referring to the order, proceeded : “ In my lease with you it is especially provided that you have to comply with the requirements of the board of health. The work must be done at once, and I would therefore request you not to delay a moment. If it will be decided that I have to pay for .it, I will do so cheerfully.”</p> <p>The plaintiff immediately procured the work to be done. It consisted of throwing aside and piling up the bricks and. other debris, so as to uncover the dead horses and then taking them away. The expense of the work upon the debris necessary to be done to uncover the dead horses and make ready for their removal was $465.50, and the expense of removing them was eighty-three dollars and forty cents. The work was completed July thirty-first. Plaintiff had paid the rent up to August first. He paid none afterwards, and his only occupation of the premises after the fire was for the purpose of removing the dead horses and making some salvage of damaged property belonging to him. The plaintiff, August ninth, sent to the defendant the bills for the expense of the work upon the debris and for the removal of the dead horses. This letter stated : “ Since all the property belonging to us that could be reached has been removed our watchman has been withdrawn.”</p> <p>At the close of plaintiff’s testimony the defendant moved for a nonsuit upon the ground that the plaintiff by the terms of the lease was bound to obey all the orders of the hoard of health, and therefore to remove the dead horses and the debris incident to such removal, and apart from the lease was bound to do so. This motion was denied, and after some evidence on the part of the defendant to the effect that the plaintiff, prior to the letter of August ninth, gave the defendant no notice of his intention to quit the premises, and that the only promise of the defendant was to pay if he should be liable, the defendant’s counsel moved for a nonsuit upon the whole testimony, which was denied. The defendant’s counsel then asked to go to the jury and requested the court to charge that if the plaintiff did not notify the defendant prior to the ninth of August, that he intended to surrender the premises, the lease did not terminate till then. The court denied defendant’s request to go to the jury. Defendant’s counsel renewed his request to go to the jury, and asked the court to charge that if the plaintiff remained in possession of the premises after August first, he did not quit and surrender them to defendant within the meaning of chapter 345, Laws of 1860, and that that being so, the defendant was entitled to a verdict. The court again refused, and the defendant then moved that the court direct a verdict in his favor. This motion was denied. The court upon motion of plaintiff’s counsel then directed a verdict in plaintiff’s favor for the whole amount claimed. The defendant’s counsel duly excepted to the several refusals and rulings.</p> <p>The General Term held that the plaintiff ought to pay for the removal of the carcasses of his dead horses, and the defendant for the labor upon the other debris, and directed judgment accordingly.</p> <p>Further facts are stated in the opinion.</p>

This was an action of ejectment, brought in January, 1883, to recover the possession of certain premises consisting of water and land under water of a natural pond or lake known as Hinckley pond or Croton lake, situated in the town of Patterson, county of Putnam, and is about 2,500 feet in length and 800 feet in width in the broadest place, and covers forty-five acres. Two streams, constituting its surface inlets, enter it at the southerly end.

<p>Appeal from judgment of the General Term of the Supreme Court hi the fifth judicial department, entered upon an order made March 25, 1890, which affirmed a judgment in favor of defendant, entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover $3,412.50 deposited with defendant, a private banker, by the firm of Sliney & Whalen, on December 5, 1882.</p> <p>The facts, as far as material, are stated in the opinion.</p>

This action was brought to recover, rent upon an alleged lease by the plaintiff to the defendants, executed April 6, 1886, of the right to use and operate a street railroad in the city of Brooklyn, then already constructed from Fulton Ferry to Park and Vanderbilt avenues, and also the plaintiff’s franchises and rights to construct, maintain and operate an extension of the existing railroad through certain other streets, including Central avenue to the Evergreens Cemetery.

. This action was brought to compel, and the judgment appealed from directed the restoration to certain water pipes of the waters of a spring on defendant’s farm so that it would flow as it had theretofore done to the plaintiff’s premises, the complaint also asked and the judgment awarded, damages for the diversion of the water, and in case the waters could not be restored to the spring gave damages for injury to the freehold.

<p>Appeal from judgment entered on order of the general term! of the supreme court in the second judicial department, affirming judgment entered upon decision of the trial court in favor of the plaintiff.</p>

<p>Aside from the method prescribed by statute, public highways may be created in the following ways: by prescription, as where land has been used by the public as a highway for twenty years with the knowledge, but without the consent of the owner; by dedication through offer andJ implied acceptance, or where the owner throws open his land intending to dedicate it to the public, and the latter use it for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment; by dedication through offer and actual acceptance, or where the owner throws open his land, and by acts or words invites acceptance, and the public authorities in charge formally or in terms accept it as a highway.</p> <p>An offer to dedicate may be qualified or made subject to a certain condition, and if it is accepted cum onere, the land becomes a highway subject to the burden.</p> <p>The owner has no power after acceptance to increase the burden or to revoke the dedication.</p> <p>Where a highway is once shown to exist it is presumed to continue until it is shown to exist no longer.</p> <p>Where, therefore, a person invokes the aid of the statute of 1861 (Chap. 311, Laws of 1861), declaring that a public highway laid out and dedicated which shall not have been opened and worked within six years after the time of its being laid out shall cease to be a highway, the burden is upon him to show that his case is within its provisions.</p> <p>In actions to restrain defendant from laying tracks and erecting buildings upon land claimed by plaintiff to be one of its streets, it appeared, and the court found, that prior to 1853 the land had become a highway by dedication. In that year a railroad company, to whose rights defendant succeeded without the consent, so far as appeared, of the owner of the land or of plaintiff, laid down tracks along the easterly side of the street, occupying all but thirty feet of its width, and also built a freight-house at one end of the street, entirely obstructing the street at that end. After the tracks were laid teams and vehicles passed along the street west of the tracks, and after the freight-house was built they passed to the west of it over a vacant lot outside the line of the street, still continuing to use the unobstructed portion of the street. In 1883 defendant obtained from the original owner of the premises a quit-claim deed of the rights and interests it had in 1853, “if any, in the land covered by said alleged * * * street.” In 1885 defendant commenced laying an additional track in the street. About 1887 the freight-house was torn down and defendant began the construction of a new one occupying more of the street. Held, that the actions were maintainable.</p> <p>It was claimed by defendant that the actions were not maintainable because plaintiffs mayor and common council had not determined the width of the street according to the use that had been made of it, as required by the provision of the statute making it the duty of highway commissioners to cause roads laid out, but not sufficiently described, and those used for twenty years but not recorded, to be ascertained, described and entered on record. (1 B. S. 501, § 1, subd. 3.) There was no finding or evidence that it had not been complied with. Held, that conceding the statute applies to incorporated cities (as to which, quaere), it was to be presumed that the city officials had performed their duty.</p>

This action was brought by plaintiff, as assignee of a mortgage, which contained a covenant that the buildings upon the mortgaged property should be kept insured against damage by fire for the benefit of the holder of the mortgage, to recover his interest in a policy for $1,900 issued thereon by defendant, $1,200 of which was on the buildings destroyed and their contents, and $700 on machinery in the building, which plaintiff claimed was attached to and formed part of the…

<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, 1890, which reversed a judgment of the County Court of Monroe county, entered upon an order which affirmed a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made the first Monday in April, 1891, which affirmed a judgment in favor of defendant entered upon a verdict directed hy the court and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

This was an action upon a certificate of membership issued to John C. Sabin by the Grand Lodge of the Ancient Order of United Workmen of the State of Hew York, which was incorporated March 29, 1877, by chapter 74 of the laws of that year. This statute authorized the corporation to create subordinate lodges and accumulate funds for the benefit of members. The fourth section of the act provides: “ § 4.

The claim was filed hy Oliver P. Bower, the claimant’s intestate, in June, 1886, for damages sustained hy him by the flooding of his lands situate in the county of Schuyler, alleged to have heen occasioned by the state dam in the Seneca river (the outlet of Seneca lake) at Waterloo, in raising the water of Seneca lake.

This was an action to recover damages for a series of trespasses alleged to have been committed by the defendant upon part of a strip of land 3,920 long and seventy-five feet wide, known as a part of the Storms tract, situate in Orange county, on the west side of Greenwood lake.

The action was brought to foreclose a mortgage made to the-plaintiff by the defendant Samuel S. Hepworth, as survivor of the firm of S. S. Hepworth & Co., June 26,1884, to secure the-payment of $23,000 and interest.

The plaintiff is the owner of property in New York known as Nos. 143 and 145 Franklin street, bounded easterly by an alleyway. Defendant is the owner of property known as Nos. 139 and 141 Franklin street, bounded westerly by said alley. The common source of title was Alexander L. Stewart.

The plaintiff is a British corporation engaged in running the White Star Line of steamships, and the defendant is a Spanish corporation.

This was an action to recover damages for an alleged breach of contract of sale. The facts, so far as material, are stated in the opinion.

This action was brought by the receiver of taxes in the city of ¡New York to recover from the defendant the amount of certain taxes assessed against her upon stock in the Broadway ¡National Bank standing in her name. ¡From the statement of facts prepared for the purpose of this appeal, pursuant to section 1339 of the Code of Civil Procedure, it appears that the plaintiff is the receiver of taxes in the city and county of ¡New York; that the defendant has not been a resident…

This was an action to recover for the alleged conversion of certain structures, machinery and other articles placed upon real estate hy plaintiff. The facts, so far as material, are stated in the opinion of Follett, Ch. J.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon - an order made February 11, 1890, which reversed an interlocutory judgment of the Special Term directed upon overruling a demurrer to the complaint; the appeal brought up for review the decision upon the demurrer.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p>

This action was to recover the amount unpaid on a promissory note, and was brought by an indorsee against the maker. It was defended upon the ground that the maker had been discharged from liability. April 11, 1887, the defendant, at the city of Hew York, made the note in suit, whereby he promised to pay, at that city, to the order of Hurlhut Paper Company, $2,904.46, five months after date.

The defendant charged by indictment with willful omission to operate gates erected at certain street crossings of its railroad in the village of Sag Harbor, was tried, convicted and subjected to a fine of $500. The gates were erected by virtue of an order of the County Court of that county, which directed their erection and operation pursuant to the statute.

<p>An order of General Term granting a new trial in an action tried by a jury, where there is a conflict of evidence and the order may have been made upon the facts, is not reviewable in this court unless it appears from the record that the order was affirmed as to the facts, or the appeal therefrom dismissed.</p>

This action was commenced May 20, 1889, upon a written instrument dated ¡November 25,1872, whereby the defendant guaranteed the payment of a note and mortgage on that day assigned by him to one John Owen, the assignor of the plaintiff.

' This was an action by a judgment creditor to set aside a-general assignment for the benefit of creditors and the transfer of certain securities made by the firm, of which defendants were members, and for the appointment of a receiver. The facts, so far as material, are stated in the opinion.

<p>Where an action in the nature of a creditor’s bill is based upon a money judgment against a nonresident, the summons wherein was not personally .served and the defendant did not appear, but an attachment was issued, although upon application for the judgment, proof by affidavit that the attachment was levied upon property of the defendant was produced and filed, this is not conclusive, and where it appears that no property was in fact levied upon the creditor’s suit is not maintainable.</p> <p>'So, also, where a valid levy was made, if it appears that the levy was abandoned by the creditor, the action is not sustainable as plaintiff's remedy is limited to property levied upon.</p> <p>It seems that if anything was levied upon whatever action in aid of the attachment is proper should be brought by the sheriff. (Code Civ. Pro. § 655.)</p> <p>IT., with moneys fraudulently obtained from plaintiff, purchased of defendant, the First National Bank, a draft upon a New York bank. IT. then fled to Canada, taking the draft with him, which he transferred for value to the defendant P. In an action commenced against IT. the summons was served hy publication against him as a nonresident. An attachment was issued, by virtue of which the sheriff assumed to levy upon the sum paid hy IT. to the defendant bank for the draft, by serving notice that he levied on moneys in its hands belonging to IT., and all deposits made by him or debts owing by the bank to him. A judgment was entered in such action, proof by affidavit having been produced that property of the defendant had been levied on by virtue of the attachment. In an action in the nature of a creditor’s suit, held, that the draft being outstanding and no default having been made upon it, the bank was not indebted to IT. or the holder of the draft, nor was it the depository or bailee of the money paid; that nothing was levied upon therefore, and no jurisdiction existed to enter the judgment against IT., and so, the creditor’s suit was not maintainable.</p> <p>Plaintiff procured the arrest of IT. in Canada, and before the commencement of the action in which the attachment was issued made a settlement with him, acknowledging full satisfaction. Defendant P. was present at the settlement, and at plaintiff’s procurement and solicitation, and upon its representation that it would be proper and safe so to do, purchased the draft from IT., thus furnishing him with money with which to effect the settlement. Held, that plaintiff was bound by its representations, and so, was estopped from disputing P.’s title to the draft.</p>

<p>Where pursuant to a city charter, property sold for unpaid taxes is, in default of bidders, struck off to the city, the rights acquired by the city may be sold by it, and it may sell to the original owner.</p> <p>There is no rule of public policy requiring such a sale to be for cash and in the absence of any provision of the charter requiring it, the sale may be upon credit, with such security as in the exercise of good faith and good judgment, the common council may deem for the best interests of the city.</p> <p>Where, therefore, the city of Buffalo, canceled certificates of sale so issued to it, on receipt of the'owner’s bond for the amount, secured by a mortgage on the lands sold, held, that the mortgage was valid.</p> <p>It seems, that conceding the city had no legal capacity to take and enforce such a security, neither the mortgagor nor a devisee of the mortgaged premises, or a judgment creditor of the devisee may question its validity.</p> <p>One who has had the full benefit of a contract with a municipality, which is ultra vires, will not be permitted, in an action upon it, to question its validity.</p>

<p>Appeal from judgment of the General Term of the Supreme ■Court in the second judicial department, entered upon an order made July 18, 1890, which reversed a judgment in favor of defendant entered upon an order sustaining a demurrer to plaintiff’s complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

In 1876, the defendant, George 1L Dauchy, having been member of a firm composed of himself and the plaintiff herein brought an action against the latter for the dissolution of the copartnership and for the appointment of a receiver, etc. One A. DeWitt Baldwin was appointed such receiver, and he with the defendants, Samuel T. Dauchy and Joseph W. Fichólas, as his sureties, made a,bond having the condition that if Baldwin should faithfully discharge the duties of his trust as…

<p>Appeal from judgment of the General Term of the Court of Common Pleas of the city and county of New York, entered upon an order made June 16, 1890, which affirmed a judgment in favor of defendants, entered upon a verdict of the District Court in the city of New York.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 12,1890, which affirmed a judgment in favor of defendant entered upon a nonsuit at Circuit.</p> <p>The nature of the action and the facts, so far as materia], are stated in the opinion.</p>

<p>Upon the trial of an action for libel, in which the answer contained a general denial, plaintiff gave evidence tending to prove publication by defendant, whose counsel at the close of plaintiff’s evidence “moved to dismiss the complaint upon the whole proof,” which was denied and an exception taken. Held, that the exception presented no specific question for review; that to present the question that the evidence was insufficient to show that defendant was the publisher, it should have been more specifically stated.</p> <p>Defendant also pleaded a justification; its counsel requested the court to charge that there was no evidence in the case that defendant was influenced by actual malice in the publication. This the court charged with this qualification “other than the justification of the article and its contents.” Said counsel also requested a charge that there was no evidence of actual malice. The court so charged, adding “other than the publication of the article,” and also charged as requested, that the. jury would not be justified in awarding exemplary damages, adding “unless the article was false and malicious, and published with intent to injure plaintiff.” Held, no error; that while the jury might not infer malice from the pleading in good faith and an honest endeavor to establish a justification, the question of good faith was for the jury, and the court was justified in refusing to hold, as matter -of law, that the answer could not be considered to enhance damages.</p>

<p>Upon a claim submitted to the Board of Claims these facts appeared: In 1822 the state diverted a portion of the waters of a river and turned them into a creek which flows through claimant’s farm, at a point above said farm, and has since used the waters to feed the Erie canal. Under the act of 1887 (Chap. 424, Laws of 1887), authorizing the superintendent of public works to widen and deepen said creek, the state entered into a contract for the work, by the terms of which the material to be removed was to be deposited where directed by the state engineer. A large quantity of rock taken from the bed of the stream was deposited by the contractor on claimant’s land. It did not appear that the state ever acquired title to any part of claimant’s farm, or the right to enter upon or remove any part of it, or that the state has occupied the land entered upon under claim of exclusive ownership. Held, that assuming the state had acquired the right to so divert the waters from the river to the creek, and to use the latter as a feeder to the canal, this did not confer the right to broaden and deepen the creek, and for the injury caused the state was liable; that the entry of the state and its direction to the contractor to remove the stone being a trespass, it became liable for all the trespasses committed with the knowledge and acquiescence of its agent, the contractor, in executing the contract; and so, that a decision of the board awarding nothing to the claimant on the ground that the wrongs complained of were committed, not by the state, hut by the contractor, was error.</p> <p>It did not appear that the claimant requested the board to find facts and conclusions of law, or that he excepted to the facts found or the conclusions of law. The notice of appeal stated the grounds upon which it was taken. Held, that this was sufficient under the statute regulating appeals from decisions of said board (§ 10, chap. 205, Laws of 1883) to enable the appellant to raise the questions presented by the notice.</p>

<p>Notice in some form to an infant is essential to confer jurisdiction upon a court to bind Ms property, and while the legislature may prescribe that the notice may be constructive instead of actual, proceedings must be in conformity with the statute in order to be valid and bind the infant.</p> <p>To authorize the appointment of a guardian ad litem, for an infant defend ant the moving papers must set forth the facts conferring upon the court authority to make the order; and so, under the provisions of the Code of Civil Procedure (§ 478), authorizing the court, where an infant defendant residing in the state is temporarily absent therefrom, to make an order appointing a guardian ad litem, and providing that the summons may be served upon such guardian, to authorize the appointment, the moving papers must show the temporary absence of the infant.</p> <p>A recital in a judgment record of service of summons in an action upon an infant defendant, while prima facie, is not conclusive evidence of the fact, as against such defendant, and he is at liberty to show that the service was not in fact made.</p> <p>An order forming part of a judgment-roll provided that certain infants be brought in and made parties defendant, and appointed a guardian ad litem for them unless they procured such appointment. The other papers showed that no guardian was appointed on application of the infants; that a supplementary summons was issued as prescribed by the Code of Civil Procedure (§ 453), which was served on the guardian named in the order. There was no proof of service on the infants; said guardian answered on their behalf. Held, that the record permitted the inference that the only service was upon the guardian, and authorized a fmding to that effect, although the record recited that said defendants were served.</p> <p>A judgment creditor cannot be deprived of his legal right to enforce collection of his judgment against the lands of his debtor by a fraudulent conveyance thereof prior to the entry of judgment, nor can he by such a conveyance be forced to pursue an equitable remedy for the collection of his debt instead of a legal one.</p> <p>Notwithstanding the fraudulent conveyance, while the title remains in the fraudulent grantee the lien of the judgment remains, the judgment creditor may sell the land under execution on Ms judgment, and the purchaser may impeach the conveyance in a suit at law to recover possession, or, if he can gain possession, defend the title thus acquired against the fraudulent grantee or those claiming under him.</p> <p>Such a purchaser in possession may invoke the aid of a court of equity to remove the apparent cloud on his title caused by the fraudulent conveyance, and to have it discharged from the record, when its invalidity does not appear upon its face.</p> <p>This is a continuing right which exists as long as there is occasion for its exercise; and so, it is never barred by the Statute of Limitations.</p> <p>While the purchaser is so in possession, claiming title under the sheriff's deed, one taking a conveyance from the fraudulent grantee cannot claim as a bona fide purchaser.</p> <p>A voluntary conveyance by one indebted at the time is presumptively fraudulent. (Follett, Oh. J., and Parker, J., dissenting.)</p> <p>The fact that a conveyance shows upon its face that it was voluntary does not alone prevent a party from maintaining an action to set it aside as a cloud on his title. The conveyance cannot be judged fraudulent solely upon the ground that it was voluntary (3 R. S. 137, § 4), and extrinsic evidence is necessary to show an existing indebtedness of the grantor at the time of its execution.</p> <p>In an action by a purchaser on execution sale to set aside two conveyances, made without consideration; one by the debtor to a third person, and one by the latter to the debtor’s wife, the indebtedness existing at the time of the conveyances was shown; also, that judgments were subsequently recovered thereon and executions issued which were returned unsatisfied. Held (Follett, Oh. J., and Parker, JJ., dissenting), that the evidence was sufficient to establish the fraudulent character of the transaction,</p>

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Few York, entered upon an order made July 18, 1890, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>