Volume 135 — New York Reports

This action was brought to recover damages against the owners and captain of a vessel upon which plaintiff had shipped as an able seaman, and while in such service, had received grave injuries. During a.voyage from the West Indies to the United States, upon a certain occasion, being ordered by the mate to “ turn to,” he said he was sick and not able to go on deck.

This action was brought to restrain defendant from using a, certain label or trade-mark. x The facts, so far as material, are stated in the opinion. The reversal being upon the facts as well as the law, all the facts, and every question of fact and law, are before this court. And rmless it appear that the findings of the trial court are against the weight of proof, the reversal of the judgment by the General Term cannot be sustained.

This was an action of ejectment. The facts, so far as material, are stated in the opinion. The General Term erred in deciding as matter of law that the payment of ten dollars to the grantor, the father of defendant Catharine A. by the husband of said defendant, even if he paid it, on her deed being first recorded, under the statute, constituted a bar to the action.

This was an action to restrain defendant from drawing or interfering with the water of a certain spring which plaintiff claimed he owned. A permanent injunction was asked for and also damages for injuries already sustained by reason of such alleged unlawful interference. * In August, 1852, the defendant and William Colson owned adjoining farms in Madison county.

<p>A surrogate before admitting to probate the will of one who was at his death an inhabitant of the state, and died seized of property therein, and issuing letters testamentary thereon, has power and is bound to inquire and to decide as to whether the testator was an inhabitant of the county at the time of bis death, and if that officer decides that he was, upon evidence legally tending to support his decision, this decision may not in the absence of fraud or collusion be questioned collaterally.</p> <p>Where, therefore, prior to the passage of the acts providing in substance that the jurisdiction of a surrogate, in the cases specified, when the necessary parties were duly cited or appeared shall not in the absence of fraud be questioned collaterally (Chap. 359, Laws of 1870; Code Civ.</p> <p>Pro. § 2473), a resident of the state died seized of real estate in the county of New York, and upon petition of the executor named in b'is will, which alleged that the decedent was at or immediately preceding his death an inhabitant of the county, the will was by decree of the surrogate thereof admitted to probate and letters testamentary issued thereon, after a hearing and judicial investigation, at which hearing the heirs at law who were infants appeared by guardian, held, that the decree was; in effect a decision, that the decedent was, at the time of his death, an inhabitant of said county; and that this could not be questioned in an action of ejectment brought by the heirs.</p> <p>It seems that if no contest had been made, and no evidence given on the subject of inhabitancy except the sworn allegation in the petition the surrogate could have relied upon the fact so stated, and his decision would be regarded as conclusive, subject only to attack by a direct proceeding to review it.</p> <p>Bolton v. Ja-cks (6 Robt. 166), overruled.</p> <p>When the defeated party in an action of ejectment takes a new trial as authorized by the Code of Civil Procedure (§ 1525), paying the costs including an extra allowance, this does not prevent the granting another extra allowance against him in case of his defeat upon the second trial-</p>

The nature of the proceeding and the facts, so far as material, are stated in the opinion. There can be no contempt found for disobedience of a writ of mandamus unless it is shown to have been properly served upon the person alleged to be in contempt. (People ex rel. v. Fisk, 1 Hun, 467; Code Civ.

<p>A patent for state lands under navigable waters, granted by the commissioners of the land office, which is not void on its face and so requires evidence dehors the instrument to show its invalidity, may only be assailed in a direct proceeding to review the action of the commissioners, or by an action in equity to set aside the patent.</p> <p>The fact that the owner of land bounded by a navigable river has conveyed to a railroad company for the use of its road a strip of the land along the water front, over which its route runs, does not deprive him of the character of riparian owner, within the meaning of the statute in reference to grants of lands under water, nor does it give to the company that character; although the title granted to the company is a fee, it holds and can only use the land for the purposes of its road.</p> <p>Heither the provision of the act of 1846 (Chap. 216, Laws of 1846) incorporating the H. R. R. Co. for the purpose of constructing a railroad along the east side of the Hudson river, nor the amendatory act of 1848 (Chap. 30, Laws of 1848) gave the corporation any title to lands belonging to the state, whether above or under the waters of the river; nor did the adopting a course or filing a map as prescribed give any such title. Said acts, at most, gave only an implied license to the company to build along the course selected; the title to lands of the state as well as those of individuals to be subsequently acquired.</p> <p>The provision of said amendatory act (§ 5) giving to the directors of the company power to adopt a new and' altered location for its road as a substitute for the original location, applies only to what is in reality an alteration and substitution; not to that which is a mere addition to the original location.</p> <p>The H. R. R. Co. pursuant to said act of 1846, duly designated the line of its road, as it passed through the town of Rishkill, and filed the proper certificate thereof in the office of the county clerk; it obtained from owners of lands fronting on the river conveyances of a strip of land along the river over which the route ran, the eastern boundary of which was above high-water mark, thus taking in the river front. The deeds contained reservations of the grantors’ rights to all land lying below high-water mark, except such portion as was included in the route as laid out and located. The grantors subsequently conveyed their remaining lands “ excepting and reserving ” the line of the railroad as then in use and occupation by the company. In 1867 the grantees made application to the commissioners of the land office for a grant of land under the river adjacent to the upland, which was opposed by the company ; while the application was pending the company, assuming to act under the amendment of 1848, changed the westerly line of the road, as originally laid out over said lands, by carrying said line further west, in no other respect changing the original location. In 1869 the commissioners granted the said application and issued a patent to the applicants “subject to all rights and privileges in and to said premises,” which said company had acquired under its charter. In 1873 said commissioners issued a patent to plaintiff, it having succeeded to the rights of the H. B. R. Co. in the strip of land under water included in the new westerly line. In an action of ejectment to recover said strip, held, that plaintiff acquired no , title thereto either by the alleged alterations, 'or by said patent; that even if the patents so issued to the defendants were void because they were not the upland proprietors, this could not be urged in this action, as plaintiff could only succeed by showing title in itself.</p> <p>Also held, that the patents so issued to defendants were valid; that neither the provision in said patents making the grants subject to the rights and privileges acquired by plaintiff, nor the provision of the Revised Statutes in reference to grants of land under water (1 R. S. 208, § 67) as amended in 1850 (Chap. 283, Laws of 1850), prohibiting the commissioners from making any grant interfering with the rights of said H. R. R. Co. affected their right to a patent, or the validity of those granted to them; also, that conceding the company had power to alter its course in the manner it assumed to do, this alteration did not affect the rights of the commissioners to make a grant to an upland proprietor of land included in the'alteration,</p>

<p>Interest may legally be allowed by a jury, in its discretion, in estimating-the amount of damages sustained by the plaintiff through an injury to-his property caused by the negligence of the defendant. The interest may be computed on the amount of the depreciation in value of the; property.</p> <p>The distinction in this respect between actions sounding in tort, and actions to recover unliquidated diimages on contract pointed out.</p> <p>An excavation was made in a street of the city of Troy for the purpose-of laying pipe to conduct water from the main laid in the street to a private residence. The owner thereof employed a Arm of plumbers to-do the work of conducting the water to his house. The city waterworks are the property of the municipality, and under the management and control of a board of water commissioners, who appoint a superintendent of the water works. Said firm applied to that officer for men to dig the trench; he directed men in the employ of the city to do this, they were paid by the city, the firm refunding to the city the amount so paid. The excavation was left without proper guards and lights, and a horse belonging to L., plaintiff's assignor, while being driven along the street at night fell into the opening and was injured. In an action to recover damages it appeared that said board, pursuant to the power conferred upon them by statute (§ 6, chap. 58, Laws of 1855), enacted an ordinance or by-law, prohibiting any one, except the superintendent or person employed by him or the board, from tapping or making any connection with the mains, unless by the permission or under the direction of the superintendent; also that it had been the custom for years before the accident to make application to the superintendent for men to make excavations necessary in connecting with the mains,and that they were furnished as in this case. Held, that the by-law did not simply prohibit the connection of lateral pipes with the main by private persons, but also prohibited them from digging the necessary trenches in the streets; and that while, asbetween the owner of the dwelling and the plumbers, the digging was a part of the work of the latter, as to others it could not be held as matter of law that the men who dug the trench and left it unguarded ceased, for the time being, tobe servants of the city, and became the servants of the plumbers; but that the question was one of fact and was properly submitted to the jury; and this having been found against the city, that it was properly held liable, although it was not charged with notice, actual or implied, of the negligent act.</p> <p>Where one is injured by the neglect of a city to properly guard a place in its street, made dangerous by its own act, it is not essential to show notice to it of the defect.</p>

This was an action to recover upon a certificate of insurance ' for $2,000 issued by defendant, payable to plaintiff upon the death of her husband. The facts, so far as material, are stated in.the opinion. The contract between a beneficial order, such as the one in question, and its member is contained in the charter and laws of the former, the certificate of membership issued by it, and the application for membership subscribed by the latter. (Hellenburg v. Dist.

<p>A riparian owner, who, by his willful act, diverts the waters of a natural stream from its accustomed channel and causes them to flow upon the-lands of his neighbor, is liable for the resulting damages.</p> <p>In an action to recover such damages, when the reasonable cost of repairing the injury, or the cost of restoring the land to its former condition is less than the diminution in the market value of the whole property by reason of the injury, the cost of restoration is the proper measure of damages, to which may be added the loss of the use of the property in consequence of the injury; but when the cost of restoring is more than such diminution, the latter is usually the true measure of damages.</p> <p>In such an action, evidence showing both the cost of restoring the land to its former condition and the diminution in its market value is. admissible.</p> <p>When damages are to be assessed upon one or the other of these two methods, according to the circumstances, and plaintiff’s proof is confined to one of them, and defendant fails to supply proof as to the other, or to raise any question on trial as to the failure of plaintiff to supply it, the omission may not be availed of on appeal.</p> <p>Where, in such an action, evidence was given by plaintiff showing the cost of restoring the land, and none was given by either party in regard to the effect of the injury upon the market value, held, that the-evidence was sufficient to sustain an award of damages.</p>

On the 22d day of ¡November, 1869, the defendants Boessle gave Walter W. Price, the husband of the plaintiff, a mortgage to secure the payment of $50,000.

the submission of a controversy under section 1279 of the Code of Civil Procedure. On March 7, 1891, plaintiff entered into a contract with the defendants, Bridget Bussell, a surviving life tenant, and James Bussell, James Barry and Ellen Barry, the remaindermen under the will of Michael Barry, deceased, for the purchase of lots 256 and 258 Cherry street, in the city of Bew York..

This action was brought to recover damages for the breach of certain covenants in a lease. The material facts are stated in the opinion. In the first lease the lessee agreed “ to keep and maintain at its own cost and expense a proper and substantial brickyard upon the whole of the demised premises.” This means one yard covering the whole premises. It also means that every appliance necessary to a fully-equipped brickyard must be put on and left.

<p>Where, by applying the description contained in a deed to the premises, an ambiguity is raised, evidence may be given to explain it, and if some particular of the description is shown to be false or defective, that may be rejected, provided the balance is sufficient to show the intention of the parties; but if, when the description is so applied, no ambiguity is produced, parol evidence is inadmissible to show that it was not the intent to convey all the land included in the description.</p> <p>B., being the owner of certain premises, conveyed a portion thereof to plaintiff. The description in his deed gave the line between the portion conveyed and the residue as beginning at a certain point on the line of a street and running at right angles therewith. Subsequently, B. conveyed the residue to defendant. In an action of ejectment, it was conceded that the description included the land in controversy, which was a triangular piece lying between the line given in the deed and a line starting at the same point and running diagonally. Defendant offered to prove on trial by parol that it was not the intention of the parties to plaintiff’s deed to include the land in question, and that the first course should have run diagonally instead of at right angles with the street. Held, that the evidence was properly rejected.</p>

09. This was a claim arising out of a contract for legislative printing. The facts, so far as material, are stated in the opinion. The judgment entered against Comptroller Olcott, in the proceedings referred to, is not res adjudicaba against the state as to any question involved before the Board of Claims.

The nature of the action and the facts, so far as material, are stated in the opinion. It was.a condition precedent to this action that the plaintiffs should have recovered valid judgments against the defendant Joseph H. Townsend. (Reubens v. Joel, 13 N. Y. 488; Bishop v. Halsey, 3 Abb. Pr. 400; Cropsey v. McKinney, 30 Barb. 47; Noble v. Holmes, 5 Hill, 194; Van Etten v. Hurst, 6 id. 311; O. N. Bank v. Olcott, 46 N. Y. 12.) The plaintiffs failed to obtain such judgments.

This action was brought to recover damages for certain alleged trespasses. The court erred in its charge to the jury in respect to the release. (Stearns v. Tarppin, 5 Duer, 294; McCrea, v. Purmont, 16 Wend. 473; Acker v. Phoenix, 4 Paige, 307.) Even assuming that there was evidence of mistake on the part of the plaintiff, it cannot avail to sustain the judgment in this case. (Lyman v. U. Ins. Co., 17 Johns. 377; Nevius v. Dunlap, 33 N. Y. 680; Mead v. F. Ins.

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

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in holding that the defendant Bebecca B. Battie, being a married woman, living with her husband upon premises which she owned, was liable for an injury caused by the bite of a dog owned by her husband, and kept by him upon her premises. (Koney v. Ward, 36 How. Pr. 255 ; Dickson v. McCoy, 39 N. Y. 400 ; Partenheimer v. Van Order, 20 Barb. 479; Kelly v. Tilton, 2 Abb. Ct. App.

This action was brought to recover damages for alleged breach of contract. The facts, so far as material, are stated in the opinion. The contract between Kelly and the defendant was assignable. (Bishop on Cont. § 603 ; Devlin v. City of New York, 63 N. Y. 8.) The defendant never was under the slightest obligation to make the dies in question, in the manner specified, or any dies, in any manner, for the Bochester Lantern Company.

This was an action to recover damages for an alleged breach of covenant in a deed from Emanuel Durnherr, plaintiff’s husband, to defendant. The facts, so far as material, are stated in the opinion. The court was in error in judging that a legal debt or duty from the promisee to the third person, for whose avowed benefit the promise is made, is necessary to enable such third person to sue upon the promise.

' Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 19,1891, which affirmed an interlocutory judgment in favor of plaintiff, entered upon a decision of the court, on trial at Special Term, overruling a demurrer to the complaint. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of. the proceeding and the facts, so far as material, are stated in the opinion. ■ By the laws of New York, incorporated savings banks, whether domestic or foreign, are exempt from taxation upon their personal property. (M. Bank v. New York, 121 U. S. 161; People ex rel. v. Peers, 61 How.

<p>Appeal from an interlocutory judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 22,1892, which reversed an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and sustained a demurrer to the complaint.</p> <p>The nature of the action and the facts, so far as material, are set forth in the opinion. .</p> <p>So far from setting forth a cause of action for negligence, improperly joined with one for the maintenance of a nuisance, no negligence is pleaded by plaintiff. This is a point decisive of the case and must have been overlooked by the General Term. (Sullivan v. N. Y., N. H. & H. R. R. Co., 1 Civ. Pro. Rep. 289; Trenndlich v. Hall, 7 id. 62; Good v. Daland, 122 N. Y. 1; Congreve v. Smith, 18 id. 79 ; Irvine v. Wood, 51 id. 228; Clifford v. Dam, 81 id. 56.) Only one cause of action is set forth in the complaint. (Lynch v. M. E. R. Co., 129 N. Y. 274; Fanning v. Osborne, 34 Hun, 121; F. P. B. Co. v. Smith, 30 N. Y. 44, 62; Clarke v. Blackmar, 47 id. 150, 153; Crooke v. Anderson, 23 Hun, 266; Farrell v. Mayor, etc., 20 N. Y. S. R. 12; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 123; Callanan v. Gilman, 107 id. 360; Heeg v. Licht, 80 id. 579; Messenger v. M. R. Co., 129 id. 502.) If the complaint can be construed as setting forth two or more causes of action, they are properly united for the reason that they are brought “ upon claims arising out of the same transaction or transactions, connected with the same subject of action.” (Code Civ. Pro. § 484, subd. 9 ; Shepard v. M. R. Co., 117 N. Y. 442; Howe v. Peckham, 10 Barb. 656 ; Rosenberg v. S. I. R. Co., 38 N. Y. S. R. 106; Wiles V. Suydam, 64 N. Y. 173 ; Adams v. Popham, 76 id. 410; Leonard v. Spencer, 108 id. 338; Chapman v. City of Rochester, 110 id. 273 ; McCrea v. N. Y. E. R. R. Co., 13 Daly, 302.)</p> <p>The defendants are not deprived of the right to demur by the fact that plaintiff has united all the causes of action in one count, or by reason of the fact that two causes of action are not separated or stated to be independent of each other, and they are not separately numbered. (Golding v. Utley, 60 N. Y. 427; Wiles v. Suydam, 64 id. 173; Stanton v. M. P. R. Co., 15 Civ. Pro. Rep. 296.) There is a misjoinder of causes of action shown by the complaint. (Code Civ. Pro. § 484; N. Y. & H. R. R. Co. v. Schuyler, 17 N. Y. 582; Sullivan v. N. Y., N. H. & H. R. R. Co., 1 Civ. Pro. Rep. 285; Teal v. City of Syracuse, 32 Hun, 332; Townsend v. Coon, 7 Civ. Pro. Rep. 52; Taylor v. M. E. R. Co., 20 J. &. S. 299.) The causes of action set up in the complaint in the case at bar did not arise out of the same transaction. (Pom. on Rem. 505 ; Francis v. Schoellkopf 53 N. Y. 152; Butler v. Kent, 19 Johns. 223 ; Olmstead v. Brown, 12 Barb. 657, 662; Moody v. Baker, 5 Cow. 351, 359; Kendall v. Stone, 5 N. Y. 15, 20; Addington v. Allen, 11 Wend. 375, 412; Clark v. Brown, 18 id. 212, 229; Williams v. D. & L. R. Co., 39 Hun, 430, 433 ; Whitmore v. Bischoff, 5 id. 176; 101 N. Y. 117; Curtis v. R. & S. R. Co., 18 id. 534.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made May 9, 1892, which reversed an order of Special Term, denying a motion to quash a writ of certiorari.</p> <p>The nature of the proceeding and the facts, so far as material, are stated in the opinion.</p> <p>In construing the act the courts have simply said that it is unfair to invoke the aid of the court unless the complaining party has first made known his grievance to the assessors. (People ex rel. v. Colemam, 41 Hun, 307.) The point that the appearance and affidavit of the attorney before the assessors, and his offer to submit to an examination were ineffectual to set the assessors in motion, is a pure afterthought on the part of the attorney for the assessors. (People v. Bd. Assessors, 40 N. Y. 155; People v. Zoeller, 15 N. Y. Supp. 634.) • The circumstances of this case make the remedy of the statute peculiarly applicable, and it affords the only remedy open to the relator. (People ex rel. v. Carter, 109 N. Y. 576.)</p> <p>The conclusion of the General Term was correct; the relator not having appeared in person to permit an oral examination by and before the., assessors, failed to comply with the provisions of the statute. (People ex rel. v. Forrest, 96 N. Y. 544.) The relator having failed to appear in person, as provided by chapter 176, of the Laws of 1851, as amended by chapter 536 of the Laws of 1857, disregarded a duty that the courts have held to be a condition to an action or proceeding against the assessors. ( Vase v. Willard, 47 Barb. 320 ; Laws of 1889, chap. 269; People v. W. S. Bank, 39 Hun, 525 ; People v. Adams, 125 N. Y. 471; People v. Dolsen, 126 id. 166; Laws of 1871, chap. 176, § 6.) A case must first be made out before the assessors on review day, and it is necessary and important that the case presented, must be accompanied or supported by proof actual, tangible, real, so that that tribunal, the assessors, may intelligently act and render judgment on it. Unless this is done, there is nothing giving the right to a review through the courts. (People v. Bd. Suprs., 15 Barb. 613.) There is no irregularity or legal error in the assessment under the general statutes, winch apply to this assessment, except as modified by section 5, chapter 535, Laws of 1888. (People v. Hauft, 104 N. Y. 380.) If everything alleged in relator’s application had been properly sworn to and all the allegations therein on information and belief, had been established by proof, and ample evidence and testimony were now before the court to establish or confirm the same, then the General Term order quashing the writ should be sustained. (People ex rel. v. Carter, 109 N. Y. 576.) The writ was not properly issuable to the assessors as they had lost entire control over the roll, and for that reason, the writ, so issued to them, must be quashed. (People v. Fredericks, 48 Barb. 173 ; 40 N. Y. 70; People v. Tompkins, 40 Hun, 228; People v. Comrs. of Taxes, 9 id. 609 ; People v. Reddy, 43 Barb. 540 ; People ex rel. v. Delaney, 49 N. Y. 655 ; Laws of 1888, chap. "535, § 6; People v. Bd. Suprs., 92 The order appealed from being discretionary is not reviewable in this court. (Code Civ. Pro. §§ 190, 1337, 2127; People v. Tax Comrs., 85 N. Y. 655; 86 id, 639; People v. McCarthy, 102 id. 660.</p>

Appeals from orders of tlie General Term of the Supreme Court in the first judicial department, made April 14, 1892, which affirmed orders of the Special Term appointing commissioners of estimate in a proceeding to acquire title to certain lands in the city of New York. The nature of the proceeding and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. Plaintiff was not entitled to tax the two items, thirty dollars taking testimony of three witnesses in Pittsburg, and fourteen dollars and fifty cents commissioner’s fees in Pittsburg, and that the defendant was entitled to a full bill of costs under the provisions of section 3234 of the Code of Civil Procedure.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made November 14, 1891, which affirmed an order of Special Term granting an application by plaintiff for leave to enter a deficiency judgment.</p> <p>This action was brought to foreclose a mortgage and the ordinary judgment of foreclosure and sale was given, containing the usual provision for a deficiency judgment and execution thereon. The defendant appealed from the judgment to the General Term and to this court, and the judgment was here affirmed. (127 N. Y. 673.) During the pendency of the appeals proceedings on the judgment were stayed. After the appeal had been taken to this court an action was commenced to foreclose a prior mortgage upon the same premises, to which the parties to this action were made defendants, and that action resulted in a foreclosure judgment, and the premises were sold under that judgment while the appeal in tiffs action was pending in this court, and a surplus was produced after satisfying the prior mortgage. In a proceeding for the distribution of such surplus upon the application of this plaintiff, about the sum of $4,000 was applied upon his judgment, and there was still left impaid thereon upwards of $3,000. Thereafter upon his motion the order appealed from was made at Special Term directing the clerk to enter and docket a judgment in his favor for the amount of such deficiency, and granting him execution therefor.</p> <p>The order applied for was properly granted. The court had not only the power, but it was its duty, to make the order. (Code Civ. Pro. §§ 1626, 1628, 1629, 1630; 2 E. S. 191, §§ 152-156; Clark v. Simmons, 55 Hun, 177; E. L. Ins. Society v. Stevens, 63 N. Y. 341; Suydam v. Bartle, 9 Paige, 294; Scofield v. Doscher, 72 N. Y. 491.) A court of equity has jurisdiction over a cause for any purpose, it may retain the cause for all purposes and proceed to a final determination of all the matters at issue. (Lynch v. R. R. Co., 129 N. Y. 274; Matthews v. Duryee, 4 Keyes, 525; Dunning v. O. N. Bank, 61 N. Y. 497.)</p> <p>The remedy of the plaintiff is by an action at law upon the bond. He cannot obtain a deficiency judgment until there has been a sale of the premises under his own, and not under a prior mortgage. (Frank v. Davis, 61 Hun, 496; Loeb v. Willis, 22 id. 508; Cobb v. Thornton, 8 How. Pr. 66; Basche v„ Doscher, 9 J. & S. 150; Bank of Rochester v. Emerson, 10 Paige, 359; Hunt v. Dohrs, 39 Cal. 304; M. L. Ins. Co. v. Hopper, 42 Atl. Rep. 528; 2 Jones on Mort. §§ 1709, 1711; Duntley v. Van Buren, 3 Johns. Ch. 330; Sprague v. Jones, 9Paige Ch. 397; Burroughs v. Tostevan, 79 N. Y. 567, 572; Orchard v. Hughes, 1 Wall. 73; Noonan v. Lee, 2 Black, 499, 501; Code Civ. Pro. §§ 1626, 1627; People v. Bacon, 99 N. Y. 275.) The order of the General Term was discretionary, and is, therefore, not appealable to this court. It lies in the court’s discretion in doubtful cases not to make the decree over for the deficiency, but to leave the defendant to sue for the same. (Withers v. Morrell, 3 Edw. Ch. 560; N. A. F. Ins. Co. v. Handy, 2 Sandf. Ch. 492; In re Schell, 128 N. Y. 67; F., etc., Co. v. B., etc., Co., 109 id. 342.)</p>

The nature of the proceeding and the facts, so far as material, are stated in the opinion. A person becoming a member of this association incurs no liability and undertakes the performance of no duty. (McDonald v. Lewis, 29 Hun, 87; Palmer v. P. Ins.

The act, chapter 249, Laws of 1890, violates section 11 of article 3 of the Constitution of this state. (People ex rel. v. Bank,, 61 N. Y. 572; Laws of 1883, chap. 490; People v. Squire, 101 N. Y. 593; Wells v. City of Buffalo, 14 Hun, 448.) It is plain that there is nothing in the act of 1890 by which the act of 1883, or any part thereof, is made or deemed a part of it, or which enacts that the act of 1883, or any part of it, shall be applicable to the act of 1890.

<p>Appeal from order. of the General Term of the Supreme Court in the first judicial department, made May 13, 1892,, which affirmed an order of the surrogate’s court, directing the payment of interest upon a legacy to the petitioner herein from the death of his testator.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>General legacies are not payable until one year after the issuance of letters, and interest does not commence to run until the legacy is payable. (2 R. S. 90, § 43; In re McCowan, 123 N. Y. 526, 531; Kerr v. Dougherty, 17 Hun, 341; In re Lynch, 52 How. Pr. 367; Nahmens v. Copely, 2 Den. 253; Garr v. Bennett, 3 id. 433; Bradner v. Faulkner, 12 N. Y. 472; Welch v. Brown, 14 Vroom. 37; Powers v. Powers, 1 N. Y. Supp. 636; Barrow v. Barrow, 8 id. 783; Pierce v. Chamberlain, 41 How. Pr. 501.)</p> <p>The petitioner is entitled to interest on the legacy from the date of the death of the testator, viz., May 28, 1890. (In re Fish, 19 Abb. Pr. 209; Cooke v. Meeker, 36 N. Y. 15 ; Hillyard’s Estate, 5 W. & S. 30; Barrow v. Barrow, 8 N. Y. Supp. 783; Powers v. Powers, 1 id. 636.)</p> <p>When a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator’s death. (Cooke v. Meeker, 36 N. Y. 15; In re Lynch, 52 How. Pr. 367; Nahmens v. Copely, 2 Den. 253; Gibson v. Bott, 7 Ves. 89; Bradner v. Faulkner, 12 N. Y. 472; Kent v. Dunham, 106 Mass. 586; Thorn v. McGowan, 124 N. Y. 526.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 23, 1891, which affirmed a judgment in favor of plaintiffs entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>This was an action upon a policy of fire insurance.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The conditions of the policy with respect to the preliminary proofs of loss to he furnislied by the plaintiffs to the defendant were not observed, but were violated by the plaintiffs. (May on Ins. 568, § 465; Blossom v. L. F. Ins. Co., 64 N. Y. 162.) The circumstances under which the plaintiffs were examined after the proofs of loss were furnished, did not deprive the defendant of the objection in respect of proofs of loss. (Titus v. G. F. Ins. Co., 81 N. Y. 410.) It was essential to the verdict rendered that the jury should find that plaintiffs notified defendant of the character of their title, or that defendant had knowledge of the state of the title when it issued the policy, and such finding was against the evidence, or so palpably against the weight of evidence as to leave no doubt as to the conclusion that the jury was influenced by passion or prejudice in respect of the verdict. (Constant v. University of Rochester, 111 N. Y. 604; Slattery v. Schwaneeke, 118 id. 543; Walton v. A. Ins. Co., 116 id. 317; Weed v. L. & L. F. Ins. Co., Id. 106; Bell v. L. F. Ins. Co., 19 Hun, 238, 243, 244; Bush v.W. F. I. Co., 63 N. Y. 531; Van Allen v. F. F. S. I. Co., 64 id. 469.) Assuming that the statement to Mandeville or to Andrews, or to both, was made to the company, the plaintiff is not relieved frpm the forfeiture of the policy under its terms. (Garfield v. Hatmaker, 15 N. Y. 475 ; Webb v. Rice, 6 Hill, 219; Everett v. Everett, 48 N. Y. 218; Sweeney v. F. Ins. Co., 20 Penn. St. 337.) It was error to charge that if plaintiffs made the representations as to title, which they claim they did make, they were entitled to recover. (Rohrbach v. G. Ins. Co., 62 N. Y. 47; Alexander v. G. F. Ins. Co., 66 id. 464; Pierce v. E. S. Ins. Co., 62 Barb. 636; Mead v. N. W. Ins. Co., 7 N. Y. 530; Wilson v. H. M. Ins. Co., 6 id. 53 ; French v. C. M. Ins. Co., 7 Hill, 122; Jennings v. C. M. Ins. Co., 2 Den. 75 ; 5 id. 326; Wall v. Howard, 14 Barb. 383; 56 N. Y. 565.)</p> <p>The plaintiffs had an insurable interest. (1 Phillips on Ins. 110, § 180; Shotwell v. J. Ins. Co., 5 Bosw. 247; AE. Ins. Co. v. Tyler, 16 Wend. 296; Griffey v. N. Y. C. Ins. Co., 110 N. Y. 417; Bicknell v. L., C. & C. F. I. Co., 58 id. 677; S. Ins. Co. v. Lewis, 42 Ga. 587; New York v. B. Ins. Co., 41 Barb. 231; Riggs v. C. M. Ins. Co., N. Y. 7; E. R. R. Co. v. R. Ins. Co., 98 Mass. 420; Redfield v. H. P. I. Co., 56 N. Y. 354; S. F. & M. Co. v. Allen, 43 id. 389, 396; Herkimer v. Rice, 27 id. 163, 175, 177; 1 Wood on Fire Ins., 645, § 281; Coursin v. P. Ins. Co., 46 Penn. St. 323; C. Ins. Co. v. Lawrence, 2 Pet. 25; Smith v. B. Ins. Co., 6 Cush. 448; Milligan v. E. Ins. Co., 16 IT. C. [Q. B.] 314; Lerow v. Wilmarth, 9 Allen, 382.) The statutes of Pennsylvania, concerning the holding of lands in that state by a foreign corporation, create no defense to this action. Beatty v. Benton, 73 Ga. 187; Phillips v. Moore, 100 U. S. 211; Cross v. De Valle, 1 Cliff. 282; Goundie v. N. Y. & C. R. R. Co., 132 Penn. St. 610.) The demand by defendant that plaintiffs should submit to an examination under oath, pursuant to the requirements of the policy, was a recognition of the validity of the policy, and a waiver of all grounds of forfeiture of which it then had knowledge. (Titus v. G. F. Ins. Co., 81 N. Y. 410, 419 ; Roby v. A. C. Ins. Co., 120 id. 501; Brink v. H. F. I. Co., 80 id. 108; Storm v. P. F. Ins. Co., 40 N. Y. S. R. 40; Beales v. W. F. Ins. Co., 75 N. Y. 7.) Fío tice to Mandeville, the agent, of the manner in which the property was held was enough. (Bidwell v. N. W. Ins. Co., 24 N. Y. 302, 304; Rowley v. E. Ins. Co., 3 Keyes, 557; McCulloch v. Norwood, 58 N. Y. 562; Haight v. C. Ins. Co., 92 id. 51; Whitted v. G. F. I. Co., 76 id. 415; Van Schaick v. N. F. I. Co., 68 id. 434; Sprague v. H. P. Ins. Co., 69 id. 128; Baldwin v. C. Ins. Co., 60 Hun, 389.)</p>

This was an action for a trespass. The facts, so far as material, are stated in the opinion. The Superior Court had no jurisdiction to grant an injunction against Mark, the defendant therein. It is beyond the power of any local court, to grant an injunction in any cause brought in the right of a patentee.

<p>' Where a covenant concerns- land and is one which is capable of being annexed to the estate, and it appears by the instrument that such was the intention of the parties, it is to be construed as running with and charging the land.</p> <p>Wkere a court in equity obtains jurisdiction for the purpose of an injunction and is in full possession of the merits it may, although the relief asked cannot properly be granted, retain the suit in order to do complete justice between the parties and administer such other equitable relief as the merits of the case justify.</p> <p>P. and A., who were owners of adjacent lots, made an agreement in writing providing that either party, his heirs or assigns, might erect a party wall, one-half on each lot, the other party, his heirs or assigns to have the right to use the same by paying to the party erecting' said wall at the time the same shall be so used, one-half the value thereof, and the same shall forever remain as a party wall. It was stated in the agreement that it shall be construed “as covenants running with the land.” The agreement was signed and acknowledged by A. only, and was recorded. P.’s grantee built upon his lot a house with a party wall, and plaintiffs subsequently acquired title to the premises through various conveyances, each of which was made sub j ect to the party-wall agreement, S. became the owner of A.’s lot and commenced to build thereon, making use of the party wall; while building S. conveyed to defendants, making no reference to said agreement. In an action to restrain defendants from using said wall until payment to plaintiffs of one-half the value thereof, and for such further relief as might seem proper, the judgment directed payment to plaintiffs of the value of one-half the wall; charged defendants’ premises with such payment, and directed that unless made they be sold to satisfy the judgment. Held, no error; that while the relief demanded was an injunction, with all the facts before it, it was proper for the court to administer further equitable relief and give to the agreement such legal effect as would accomplish exact justice between the parties; that whether the agreement was to be considered a common law obligation personally enforceable, or an instrument which impressed a lien upon the land, when it was availed of it was enforceable against the land.</p> <p>Also held, the objection that the agreement appeared to have been executed by but one of the parties and, so, was invalid as lacking mutuality, was not tenable, as the proofs showed that the contract had been made and defendants, standing upon A’s title, were not entitled to make the objection.</p> <p>Also held, the objection that because the conveyance to defendants from S. contained no reference to the agreement they were not bound, was untenable, as the agreement was a charge upon the land, and if defendants did not have actual, they had constructive notice from the public records and so were bound.</p> <p>Also held, that the agreement was, by reason of the expressed intention of the parties, a covenant running with the land, and its effect was to grant or to create an interest in the premises.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The reversal must be deemed to be upon questions of law only. (Code Ciy. Pro. § 1338; Dorchester v. Dorchester, 121 N. Y. 156.) The order is appealable to this court. (Raynor v. Raynor, 94 N. Y. 251; Dorchester v. Dorchester, 121 id. 160.) The alleged former adjudication between William Collins, as assignee, etc., and the defendants, is not available to the defendants upon this appeal.

<p>While, where under the law there is an entire lack of power to do an act in question, it may not be rendered valid by estoppel, if power to do it existed and there was a way in which it could be lawfully done, and it</p> <p>• purports to have been so done, one who has induced another to act upon the assumption that it was in fact so done, may be estopped from questioning its validity.</p> <p>An estoppel relating to an interest in land passes with the land.</p> <p>The provision of the Code of Civil Procedure (§ 936), which declares that the certificate of acknowledgment of a conveyance is not conclusive and may be rebutted and its effect contested by one affected thereby, cannot be invoked to prevent the operation of an estoppel by deed.</p> <p>Where the owner executes a deed of real property and delivers the same, with a certificate thereon of an officer authorized by law to take acknowledgments, of the grantor’s appearance before him at a place within his jurisdiction and of an acknowledgment by said grantor, of its execution, neither the latter nor one claiming title under a subsequent conveyance by him, can subsequently allege the falsity of the certificate or its invalidity, even upon a jurisdictional ground, for the purpose of impairing the estate of the grantee.</p> <p>In an action to set aside a deed as a cloud on title, both parties claimed by purchase from the same grantor. Defendants’ deed, which was the prior one, was perfect and valid upon its face. Upon it was a certificate of acknowledgment in the usual form signed by a notary public in and for the county of S.; the venue of the certificate was laid in that county and its county clerk authenticated in due form the official character of the notary. The deed was recorded in the county of T. where the land was situated and where the grantor lived. It appeared that the deed was in fact executed and acknowledged at the grantor’s residence in the county of T.; it was executed for a good consideration, and there was no evidence that the grantor was the victim of any fraud, imposition, or duress. Held, that plaintiff was estopped as against defendants frpm claiming that the deed was not duly acknowledged.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The City Court of Brooklyn had no jurisdiction to tiy this case. (Main v. Cooper, 25 N. Y. 180 ; Kelly v. N. Y. & M. B. R. R. Co., 81 id. 233; Wickam v. Freman, 12 John. 173; Sage v. Harpending, 31 How. Pr. 1; McKeller v. Ziegler, 47 id. 20; Proctor v. Tows, 115 Ill. 138; McCann v. Rathbone, 8 R. I. 403; Frank v. Nichols, 6 Mo.

The facts, so far as material, are stated in the opinion. There was never a dedication by the owners of the lands in controversy for a public street. (48 Hun, 488; N. F. S. B. Co. v. Bachman, 66 N. Y. 261.) A dedication of the locus in quo for a public street would be ineffectual if revoked before acceptance by the public authorities. (Holdane v. Trustees, etc., 21 N. Y. 474; 48 Hun, 488.) There was never any acceptance of a dedication of the land by the public authorities.

The nature of the action and the facts, so far as material, are stated in the opinion. The mortgage is only security for the debt evidenced by the bond, and the assignee took it subject to all defenses and equities. (Trustees, etc., v. Wheeler, 61 N. Y. 88.) When a wife mortgages her real estate to secure payment of her husband’s debt she is a surety, and has all the rights, privileges and defenses of a surety.

The nature of the action and the material facts are stated in the opinion. The plaintiff is entitled to a new trial, because chapter 5J2 of the Laws of 1886, does not apply to Buffalo.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made July 7, 1891, which reversed a judgment in favor of plaintiff entered upon a verdict and ordered a new trial.</p> <p>This action was brought upon a bond, the terms of which as well as the facts, so far as material, are stated in the opinion.</p> <p>Defendant’s sole defense is that plaintiff has been so guilty of laches under the bond and agreement, in not using due diligence to collect its drafts, of Baker & Clark, as to discharge defendant, a surety, upon said bond, conclusively and as matter of law. This defense was not established and ought not to have been sustained by the General Term; but at most defendant was only entitled, as the Circuit judge ruled, to have the jury say whether plaintiff had been so guilty of laches. (Van Vechten v. Pearson, 5 Paige, 512; Miller v. Phillip, 5 id. 573; Roome v. Phillips, 24 N. Y. 463; People v. Van Rensselaer, 8 Barb. 200 White v. Case, 13 Wend. 543; Dobbin v. Bradley, 17 id. 422; Schmitz v. Langhaar, 88 N. Y. 503, 507; Burt v. Horner, 5 Barb. 501; Mead v. Parker, 111 N. Y. 259, 262; C. N. Bank v. Pratt, 40 N. Y. S. R. 789; Gallagher v. White, 31 Barb. 94; Pennimam, v. Hudson, 14 id. 580-81; Backus v. Shepherd, 11 Wend. 631, 634; Lamourieux v. Hewitt, 5 id. 307, 308; Thomas v. Woods, 4 Cow. 180; Tiffany v. Willis, 30 Hun, 266; N. Ins. Co. v. Wright, 76 N. Y. 445 ; Craig v. Parkis, 40 id. 186.)</p> <p>Plaintiff must stand or fall upon his case as it stood when summons was served March 17, 1888. The execution had not then been returned.. (Smith v. Aylesworth, 40 Barb. 104.) Defendant was a guarantor, not a surety. The former is a secondary, whereas the latter is a primary obligation. In the ease of a guarantor his responsibility does not begin until the performance of some act, or the fulfillment of some promise on the part of the creditors. (9 Am. & Eng. Enc. of Law, 431; 18 Am. L. It. [N. S.] 751; 10 id. 431.) Defendant was a special guarantor of collection, not of payment. (McMurray v. Noyes, 72 N. Y. 523; E. N. Bank v. Kaufman, 93 id. 273.) In such a guaranty it is a condition precedent that the creditor shall diligently endeavor to collect the amount of the principal debtor by exhausting the ordinary legal remedies for that purpose, and a failure so to do works a discharge of the guarantor. (Vanderbilt v. Schreyer, 91 N. Y. 398; Tiffany v. Willis, 30 Hun, 266; Brandt on Suretyship, chap. 3; DeColyar on Guarantees, 190-197; S. S. N. Bank v. Sloan, 32 N. Y. S. R. 653.) The rights of the plaintiff under the bond in question are to be most strictly construed, and the liability of defendant limited to the exact extent named in the bond. (Wright v. Johnson, 8 Wend. 512, 516; Kingsbury v. Westfall, 61N. Y. 360; Creeghino v. Hammer, 60 Cal. 235; E. N. Bank v. Kaufman, 93 N. Y. 281; Birkhead v. Brown, 5 Hill, 635; Jones v. Ashford, 79 N. C. 172; Barnes v. Barrow, 61 N. Y. 39; 93 id. 288; McCluskey v. Cromwell, 11 id. 598; Rindge v. Judson, 24 id. 64; Schwartz v. Hyman, 107 id. 565 ; People v. Chalmers, 60 id. 158.) Plaintiff failed to perform the exact conditions precedent, and therefore failed to bind defendant under his bond, in that it did not proceed with due diligence against the principal debtor. (Brandt on Surety-ship, § 84, 86; Markley v. Riggs, 19 Johns. 69; Eddy v. Stanton, 21 Wend. 255; Bd. Suprs. v. Otis, 62 N. Y. 94; Carr v. Sterling, 114 id. 564; Voorhist v. Atlas, 29 Iowa, 49 ; Kils v. Tifft, 1 Cow. 98; Mookley v. Johnson, 19 Johns. 69; McMurray v. Noyes, 72 N. Y. 525; Mosier v. Waful, 56 Barb. 80; Tolles v. Adee, 91 N. Y. 572; Mead v. Parker, 111 id. 262.) Plaintiff failed to perform the exact conditions ¡precedent, and therefore failed to bind defendant under his bond in that he voluntarily granted ninety-nine days more time to the principal debtors than they were by due process of law entitled to. (Miller v. Stewart, 9 Wheat. 680; People V. Backus, 117 N. Y. 201.) Plaintiff failed to perform the exact conditions precedent, and theref ore_failed to hind defendant under his bond, in that it failed to perform the conditions precedent within the tune limited in the bond. (Craig v. Parkis, 40 N. Y. 181; Schmitz v. Langhaar, 88 id. 506; N. Ins. Co. v. Wright, 76 id. 445; Ralph v. Eldridge, 34 N. Y. S. R. 191.) The fact that the principal debtors, Baker and Clark, were notoriously insolvent, did not relieve the plaintiff from the performance of its full duty with relation to the condition precedent. (Craig v. Parkis, 40 N. Y. 181; N. Ins. Co. v. Wright, 76 id. 445 ; Toles v. Adee, 91 id. 572.) The trial court erred in refusing to grant defendant’s motion for a nonsuit at the close of plaintiff’s case upon the grounds stated, and the General Term’s decision reversing the judgment should be affirmed. (Schmitz v. Langhaar, 88 N. Y. 506; N. Ins. Co.v. Wright, 76 id. 488; Craig v. Parkis, 40 id. 181; McMurray v. Noyes, 72 id. 525; Burt v. Homer, 5 Barb. 501; Tiffany v. Willis, 30 Bun, 266, 263; Mead v. Parker, 111 N. Y. 262; S. S. N. Bank v. Sloan, 39 Hun, 772; Schwartz v. Hyman, 107 N. Y. 562.) If the question properly belonged to the jury the trial court erred in its charge to the injury of the defendant, and the reversal of judgment ordered by the Geveral Term should be affirmed. (Craig v. Parkis, 40 N. Y. 181; Newcomb v. Hall, 90 id. 331; Miller v. Stewart, 9 Wheat. 680; Cady v. Sheldon, 38 Barb. 108; People v. Nelson, 13 Wend. 164; Foster v. People, 50 N. Y. 601.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff claims that the indisputable facts show him entitled to and actually in possession of the' wheat in question, adversely to defendant’s claim thereto, at the time when the latter wrongfully took same.

This was an action by plaintiff, a telephone company, to restrain defendant from operating its street railroad by means of an electric motor, known as the single-trolley method, in certain streets of the city of Albany, on the ground that it would cause great and irreparable injury to plaintiff’s telephone system and service.

The facts, so far as material, are stated in the opinion. An appeal from a decree of the surrogate can only be taken Upon questions of law, or upon the facts, or upon both. (Code Civ. Pro. § 2576.) There was no appeal in this case upon the facts. (Burger v. Burger, 111 N. Y. 525 ; In re Hunt, 110 id. 278 ; Code Civ.

This was an action by plaintiff as the beneficiary named in a certificate of membership issued by defendant, a fraternal assessment… Held: that the information received by the officers charged with the duty of levying, collecting and receipting the assessments was not such knowledge as required them to withhold and refuse payment of the assessments until the adjudication of expulsion was made, as was held by the General Term, then when that adjudication was made they…

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant’s guarantee was simply an undertaking on the part of James H. Pratt that the obligations of William T. Pratt would be paid if prosecuted with reasonable diligence. (Craig v. Parkins, 40 N. Y. 181; N. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 14, 1891, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This action is brought by attaching creditors against judgment creditors, both having a lien on the same property. Plaintiffs claim the liens of defendants by reason of tlieir judgments and executions to be fraudulent and obstructions in the way of plaintiffs’ liens. The action is maintainable. (Bates v. Plonsky, 28 Hun, 112; Keller v. Payne, 22 Abb. [N. C.] 352; Tannenbdum v. Rosswog, 22 id. 352.) The validity of plaintiffs’ attachments could not be passed upon in this action. (Skinnion v. Kelly, 18 N. Y. 355.) An executor or executrix has no power to confess judgments. If offers of judgment are made to avoid the provisions relative to confessions of judgment they are fraudulent. (Ross v. Bridge, 24 How. Pr. 163; Code Civ. Pro. § 738.) The executions issued on these judgments are null and void and contrary to the Code of Civil Procedure. (Code Civ. Pro. §§ 1371, 1825, 1826; Syms v. Mayor, etc., 105 N. Y. 159.) An estate can carry on business. (Burwell v. Mandeville, 2 How. [U. S.] 559.) An attachment may issue against an executor. (In re Hurd, 9 Wend. 465.)</p> <p>The petitioner who applied for the revocation of the letters and who was a merchandise creditor, standing exactly in the same position as the judgment creditors and the plaintiffs in this action, was not a creditor of the estate of Joseph Stern, deceased, and therefore could not make the application. (Willis v. Sharp, 113 N. Y. 586; 115 id. 396.) The estate of the deceased will, under no circumstances, be liable for the debts contracted by the executors, unless the will clearly shows an intention on the part of the testator to charge his estate for any liability of the executor while so conducting such business, and only such part of the assets as are embarked in the business by the executor can be made liable for the payment of debts incurred by the executor in the management of such business. (Stewart v. Robinson, 115 N. Y. 328; Williams v. Whedon, 109 id. 333; Loeschick v. Hatfield, 51 id. 660; Cushman v. Addison, 52 id. 628; Emerson v. Senter, 118 U. S. 3; Haynes v. Brooks, 42 Hun, 528; In re Hurd, 9 Wend. 465 ; Metcalf v. Clark, 41 Barb. 47.) The judgments sought to be set aside are not entered against the defendants Stem & Stern in their representative capacity, and the insertion of the words “ executor ” and “ executrix ” in the title of the action after two of the names.is merel y descriyvtio persona. (Stewart v. Robinson, 115 N. Y. 334; Beers v. Squire, 73 id. 297; Donohue v. Kendall, 18 J. & S. 388 ; Nerill v. Seaman, 6 N. Y. 168; Sheldon v. Hoy, 11 How. Pr. 14.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 23, 1891, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to restrain defendant from permitting the waters of Canandaigua lake to overflow plaintiff’s land and for damages.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The plaintiff was entitled to judgment in this action, that a perpetual injunction be granted. (Laws of 1886, chap. 658; Corning v. T. I. Co., 40 N. Y. 7; Mudge v. Salisbury, 110 id. 413; Galway v. M. E. R. Co., 128 id. 148.) The respondent now owning the property of the Ontario Hydraulic Company (Chap. 237 of the Laws of 1855) is under the same liability as said Hydraulic Company. (Dillon on Hun. Corp. § 985.) The grant given to the village by the legislature became a contract with the appellant to complete and carry out the same. (Gilmore v. City of Utica, 121N. Y. 561, 568; People v. Bd. Suprs., 51 id. 50 ; People v. Bd. Suprs., 68 id. 114; Conrad v. Trustees, etc., 16 id. 158.) The respondent having initiated the proceedings under the act of the legislature and having taken possession of the feeder, built the bulkheads, etc., should be held to have accepted the authority given to it by the legislature, subject to all the burdens and liabilities. (Bailey v. Mayor, etc., 3 Hill. 531.) The appellant is entitled to maintain this action, and to the relief asked for in the prayer of the complaint, whether the plan of sewerage was defective or not. (Baily v. Mayor, etc., 3 Hill. 531; Mayor, etc., Furze, Id. 612; Hutson v. Mayor, etc., 5 Seld. 163; Mills v. City of Brooklyn, 32 N. Y. 489; Butler v. Vil. of Edgewater, 25 N. Y. S. R. 315; Stoddard v. Vil. of Saratoga Springs, 22 id. 215; Noonan v. City of Albany, 79 N. Y. 470; Wood on Nuisances, § 752; Dillon on Mun. Corp. § 1051; Hardy v. City of Brooklyn, 90 N. Y. 435; Morgan v. City of Binghamton, 32 Hun, 602; Bates v. Inhabitants of Westborough, 151 Mass. 174.) The village now owns the feeder the bulkheads and the gate, and has the absolute right to control them and should be required to regulate the gate and the waters flowing through it so as not to destroy appellant’s land. ( Vogel v. Mayor, etc., 92 N. Y. 19.) The acts of defendant amount to a nuisance, and in such case the court will grant an injunction to restrain it in continuing the same. (Cogswell v. N. Y. C. & H. R. R. R. Co., 103 N. Y. 21; Baily v. Mayor, etc., 3 Hill. 531; Byrnes v. City of Cohoes, 67 N. Y. 204; Noonan v. City of Albany, 79 id. 470; Seifert v. City of Brooklyn, 101 id. 136 ; In re B. & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Spokes v. Branbury Board of Health, L. R. [1 Equity] 41; Hooker v. City of Rochester, 37 Hun, 181; Tiffany v. U. S. I. Co., 67 How. [U. S.] 73; Gould v. City of Rochester, 105 N. Y. 46 ; Chapman v. City of Rochester, 23 Wkly. Dig. 424; Vick v. City of Rochester, 46 Hun, 607; Lynch v. Mayor, etc., 76 N. Y. 60; Mayor v. Furze, 3 Hill. 612; Hutson v. Mayor, 5 Seld. 163 ; Mills v. City of Brooklyn 32 N. Y. 489.) The appellant has helped to pay for the property, which is useful and valuable to the defendant, it has exclusive control over the gate, and the court should use all its equitable powers to sustain plaintiff’s rights, and protect his property. (Fletcher v. Rylands, L. R. [1 Exch.] 2; G.L. & C. Co. v. Vestry, etc., L. R. [15 Q. B.] 1.) The court erred in sustaining the objection of defendant as to question asked the witness Ellis. (Adams v. Conover, 87 N. Y. 422.)</p> <p>The plaintiff cannot recover under the provisions of chapter 658 of the Laws of 1886. (Johnson v. Specur, 107 N. Y. 185 ; In re N. Y. E. R. R. Co., 70 id. 350 ; People v. Hills, 35 id. 499 ; People v. Allen, 42 id. 378 ; Huler v. People, 49 id. 132; People v. Suprs., 43 id. 10; People v. Purdy, 54 id. 276.) The corporation is not estopped from raising this objection by the action of its board of trustees. (Mayor, etc., v. Cunliff, 2 N. Y. 165.) The plaintiff is not entitled to an injunction in this action upon the merits. (Mayor v. Merserole, 26 Wend. 131; Moore v. Saundly, 6 Johns. Ch. 28 ; Thompson v. Mather, 2 Edw. Ch. 212; T. & B. R. R. Co. v. B. H. T. & W. Co., 86 N. Y. 122; Stevens v. Mayor, 84 id. 296; Mann v. Fairchilds, 2 Keyes, 111; Arnold v. Angelí, 62 27. Y. 508; Gentil v. Armand, 38 How. Pr. 94; Morgan v. City of Binghamton, 102 27. Y. 500; Woodruff v. Fisher, 17 Barb. 224.) This plaintiff, being a party to the proceedings, having appeared before the commissioners, and having taken the award for damages, and not having appealed from their decision in regard to the benefits, is estopped thereby, as well as by the action and decision of the commissioners in making their award, and cannot maintain this action, which is at most only an incidental injury, if it is an injury at all. {In re P. P. & C. I. R. R. Co., 85 27. Y. 489, 499 ; R.&S.-R. R. Co. v. Budlimg, 6 How. Pr. 467, 469 ; Pray v. Hegeman, 98 27. Y. 351; In re Commissioners of Central Pa/rk, 50 id. 493; DePeyster v. Mali, 92 id. 262.) Whatever control the defendant may have it is subjected to special limitations independent of the general rule controlling the flow of water. (Laws of 1855, chap. 234, § 1; Laws of 1886, chap. 658, § 1.) The action on the part of the defendant which is complained of is in the prosecution of a public work authorized by the law of 1886, and so considered the plaintiff’s case must fail. {Webb v. Atherson, 4 Barb. 51; Richardson v. Crandall, 48 27. Y. 361; Winter v. Himney, 1 id. 365.) 27o action will lie against the defendant for consequential or other injury resulting from the work, or for inadequacy of the plan adopted to carry out successfully the entire object. (Waggoner v. German, 3 Hill, 7 ; Atwater v. Trustees, etc., 30 N. Y. S. R. 587; Ely v. City of Rochester, 26 Barb. 133; Urquhart v. City of Ogdensburgh, 91 N. Y. 67; Kavanah v. City of Brooklyn, 38 Barb. 232; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Hines . v. City of Lockport, 50 id. 236; Mills v. City of Brooklyn, 32 id. 489; Mills v. Mayor, etc., 1 Den. 595; E. R. Co. v. Donnelly, 25 Hun, 614; Cain v. City of Syracuse, 29 id. 105; 95 N. Y. 83; Town of Ontario v. Hill, 29 Hun, 250-253; City of Detroit v. Beekman, 22 Am. Rep. 507; Lansing v. Toolan, Id. 501; Carr v. Northern Liberties, 35 Penn. St. 324-329; Watson v. City of Kingston, 114 N. Y. 88; Rutherford v. Village of Holly, 105 id. 632; Heiser v. Mayor, etc., 104 id. 68; In re Squire, 34 N. Y. S. R. 721.) The rulings made on the questions put to the witnesses F. L. Manning and Bolivar Ellis- were proper. (Brooks v. Mayor, etc., 57 Hun, 104; Green v. Clark, 5 Den. 49; Morgan v. Plumb, 9 Wend. 288; Thomas v. Hubble, 18 Barb. 9-10.) In an equity action the court will not reverse the judgment, on account of the admission of improper evidence, if from the whole case it appears that such evidence could not have changed the result. (King v. Whaling, 59 Barb. 71; In re N. Y. C. R. R. Co., 90 N. Y. 342.)</p>

G. Blakslee Manufacturing Company. The facts, so far as material, are stated in the opinion. The E. G. Blakslee Manufacturing Company’s lot of land Ho. 1 gave them no riparian rights whatever. It did not make them the adjacent proprietor of any upland. (1 R. S. [7th ed.] 573, § 67.) The E. G. Blakslee Manufacturing Company was not the proprietor of the adjacent lands by reason of being the owner of lot Ho. 2, called the Jones lot, and, therefore, the grant to them is void.

<p>I1, Witness—Imp eachment—Contradiction.</p> <p>Collateral matter, though it may properly be used for purposes of cross-examination, cannot he contradicted in order to impeach the witness. •</p> <p>S. Saíne.</p> <p>In such case, the party is hound by the replies of the witness to the questions put and cannot go further and litigate the immaterial issue.</p> <p>3. Trial—Objection's—Waiver.</p> <p>Where evidence objected to is not in its essential nature incompetent, all grounds of objection, which might have been obviated, if they had been specifically stated, must he deemed to have been waived.</p> <p>4. Evidence—Other crimes.</p> <p>Where, upon the trial of a person charged with arson, evidence which very clearly tends to prove that the fire was not accidental, that its origin was instigated by malice and not from the desire of gain, that it was kindled by some person having an intimate knowledge in regard to the situation of the property, is properly received, even though it may tend to establish the defendant guilty of another crime than the one set forth in the indictment on trial.</p>

<p>1. Forgery—Procurer.</p> <p>The procurer of a forged signature, present at the time, aiding and abetting the forgery, is properly charged as a principal,</p> <p>2. Indictment—Objections—Waiver.</p> <p>Where offenses cannot be united in the same indictment, such objection must be taken by demurrer, and is waived, when not so taken, and does not constitute one of the grounds for which judgment can be arrested.</p>

Affi’EALfrom judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 3, 1891, which, affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. This was an action to vacate an assessment alleged to have been illegally made on plaintiff’s property in the village of Port Chester for the grading of Haseco and Irving avenues, and to. recover back the amount paid thereon.

The facts, so far as material, are stated in the opinion. The board of revision had not jurisdiction to confirm an assessment of the entire expense of paving the Ilingsbridge road against the property of the appellant.

The facts, so far as material, are stated in the opinion. Held: whether this court shall consider such decision sound or unsound. (Douglas v. County of Pike, 101 U. S. 687 ; O. L. I & T. Co. w. Debolt, 16 How. [U. S.] 432; Gelpeke v. City of Dubuque, 1 Wall. 206; Olcott v. Bd. Suprs., 16 id. 690.) The question presented by this appeal is purely one of law, and not at all one of fact.

Appeal in th'e first above-entitled proceeding from order of the General Term of the Supreme Court in the third judicial department, made September 22,1892, which denied an application for a mandamus, requiring the secretary of state, to issue election notices under the Apportionment law of 1879 (Chap. 208), and enjoining him from filing election returns under the Apportionment Act of 1892 (Chap. 397), or performing any act thereunder.

The board of canvassers of Dutchess county canvassed the votes cast for the office of county treasurer at the general election held in said county on November 3, 1891, rejected certain ballots on the ground that they were marked for the purpose of identification, and declared the result and filed a certificate giving the office to Frank Hasbrouck, the relator, the democratic candidate, by a plurality of thirty-seven votes.

<p>The obligation of the states of the Union to surrender to each other persons charged with crime is not founded upon comity or treaty, but upon the plain provisions of section 3 of article 4 of the Constitution of the United States, which embraces all crimes.</p> <p>Where a person has been extradited he may be indicted and tried for an offense other than the one upon which he was extradited, when the acts set forth in the indictment upon which his extradition was based and the indictment upon which he is tried are identical.</p> <p>In the present case it was held proper to indict and try for robbery a person extradited upon a charge of larceny, when the two charges arose from the same identical acts.</p>

This was an action for the reformation of an instrument alleged to be a mortgage and to foreclose the same. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The policy upon which this suit is brought is a contract of a peculiar character, pertaining exclusively'to the exceptional nature of the business done by' the defendants.

This was an action to recover of defendant, the Bowery Savings Bank, the sum of -$1,335.06, with interest, alleged to be standing to the credit of plaintiff as administrator of the estate of Mary Ann Gearns, deceased, on defendant’s books. The facts, so far as material, are stated in the opinion. The power of attorney, upon which defendant relied, was invalid and should not have been admitted in evidence.

The nature of the action and the facts, so far as material, are stated in the opinion. In construing a will, when the testator’s intention or general plan is clearly shown in the testamentary paper, this intention or general plan must control.

This was an action upon a guaranty. The facts, so far as material, are stated in the opinion. The referee committed a grave error in holding that the covenant to return the vessel in good condition was an absolute engagement to return it in any event, or pay the owner its value in case of a failure to return. McKay, the charterer, was not liable in case of destruction by fire, without negligence or fault on his part, and a fortiori, the defendant, as surety, was not liable.

0 This was an action to recover damages for the negligent killing of William P. Yande water, plaintiff’s intestate, while attempting to drive across the track of defendant, a railroad corporation. The facts, so far as material, are stated in the opinion.

<p>1. Railroads—Negligence—Signals at crossings.</p> <p>Upon the trial of an action to recover for the death of plaintiff’s husband while attempting to cross defendant’s tracks at a farm crossing, plaintiff was allowed to prove the failure of the engineer of the approaching train to blow a whistle or sound a bell at another crossing 3,000 feet away, and that it was customary for the engineers or firemen of defendant to do so. Held, error.</p> <p>2. Same.</p> <p>The duty of giving the signals is placed by the Penal Code upon the engineer, and his failure is made a crime, and in that way the giving of the signals is still provided for. The statute, however, does not impose the duty upon the company, and unless such duty is imposed by statute, the failure to give such signals cannot as a matter of law be regarded as a neglect of duty. (Maynard, J., dissents.)</p>

This action was brought to enforce the specific performance by the defendant of his agreement to purchase certain real estate, situated in Hew York city. The property was sold by the plaintiff at public auction and struck off to defendant, on his bid; but he refused to complete his purchase, upon the ground that a conveyance by the plaintiff would not pass the legal title.

This action was brought by judgment creditors to' set aside as fraudulent an assignment for the benefit of creditors, and to procure the application of certainmoneys paid 'to defendants, in pursuance of a preference contained therein, to the the satisfaction of plaintiff’s judgment. The preferred claim was not due by the firm which assigned.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 26, 1891, which overruled defendant’s exception and ordered judgment on verdict in favor of plaintiff, directed by the trial court.</p>