Volume 137 — New York Reports

The nature of the claim and the facts, so far as material, are stated in the opinion. The liability of the state to he determined in this claim must be based upon the same rules and principles as though this were an action against an individual or a corporation. (Laws of 1870, chap. 321, § 1; Laws of 1883, chap. 205, § 13; Sipple v. State, 99 N. Y. 284; Bowen v. State, 108 id. 166; Splittorf v. State, Id. 213.) The claimant failed to prove negligence on the part of the state.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 7, 1892, which affirmed a judgment in favor of defendant, 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>The acts of 1885 and 1886, so far as they attempt to authorize the imposition and apportionment of assessments, are void. They violate the constitutional provision that no person shall be deprived of property without due process of law. (Stuart v. Palmer, 74 N. Y. 183; Remsen v. Wheeler, 105 id. 573; McLoughlin v. Miller, 124 id. 517; Lennon v. Mayor, etc., 55 id. 361; People v. Turner, 117 id. 237; N. Bank v. Kimball, 103 U. S. 732; L. W. Co. v. Clark, 143 id. 1.) The comptroller illegally exercised the powers conferred upon him by the acts. (Elwood v. City of Rochester, 122 N. Y. 229.) Plaintiff had no adequate remedy at law. (Wheeler v. Bedford, 54 Conn. 244; Trimmer v. City of Rochester, 130 N. Y. 405; Woolsey v. Morris, 96 id. 315; Livingston v. Hallenback, 4 Barb. 9; Hyatt v. Bates, 40 N. Y. 167; Mayor, etc., v. Davenport, 92 id. 613.) The writ of certiorari is inapplicable. (People v. Parker, 117 N. Y. 86; U. S. Co. v. City of Buffalo, 82 id. 351; People v. Dunkirk, 38 Hun, 7.) The writ of certiorari is inadequate. (102 N. Y. 631; Bank v. City of Elmira, 53 id. 59; A. Bank v. Mahler, 9 Fed. Rep. 884.) The proper remedy is an action to restrain the collecting officer. (Osborn v. U. S. Bank, 9 Wheat. 738; Foote v. Linck, 5 McL. 616; Lennon v. Mayor, etc., 55 N. Y. 361; Bristol v. Johnson, 34 Mich. 123; Gage v. Graham, 57 Ill. 144; Allwood v. Cowen, 111 id. 481.)</p> <p>As adequate remedies are provided by law, an action for an injunction will not lie. (Code Crim. Pro. § 2140; D. & H. C. Co. v. Atkins, 121 N. Y. 246; People v. Zoll, 97 id. 208; Murray v. Graham, 6 Paige, 622; M. B. Ins. Co. v. New York, 3 Keyes, 182; Guest v. City of Brooklyn, 69 N. Y. 506.) The plaintiff has not brought this action within any-acknowledged head of equity jurisdiction. (W. R. R. Co. v. Nolan, 48 N. Y. 513; W. R. R. Co. v. Smith, 101 id. 684; D. & H. C. Co. v. Atkins, 121 id. 246; Milwaukee v. Koeffler, 116 U. S. 219.) The statutes, chapter 499 of the Laws of 1885, as amended by chapter 503 of the Laws of 1886, and chapter 330 of the Laws of 1886, are not unconstitutional. (People ex rel. v. Squire, 107 N. Y. 593; 145 U. S. 175; A. R. T. Co. v. Hess, 125 id. 641; R. R. Co. v. Gibbs, 142 U. S. 386.) The comptroller had authority, and it was his duty, to make the assessment immediately after the passage of chapter 330 of the Laws of 1886. There is no merit in the contention of the plaintiff that the statute of 1885 and 1886 were unconstitutional because, in effect, they deprived plaintiff of property without due process of law. (Cooley on Taxation [2d ed.], chap. 19; In re De Peyster, 80 N. Y. 565; In re Lowden, 89 id. 548; McMahon v. Palmer, 102 id. 116; People v. McCarthy, Id. 643; Sturges v. Carter, 114 U. S. 511; Hager v. Reclamation Dist., 111 U. S. 701—710; Davidson, v. City of New Orleans, 96 id. 102; Wallston v. Nevin, 128 id. 518, 582; Happeld v. City of Buffalo, 130 N. Y. 381; Palmer v. McMahon, 133 U. S. 669.) The assessment was not illegal or erroneous because the wires of the corporation of the city of Eew York were not considered by the comptroller in determining or apportioning the assessment. (M. Bank v. New York, 121 U. S. 138.) The comptroller properly apportions the moneys to be raised by cities. (Genet v. City of Brooklyn, 99 N. Y. 306; Spencer v. Merchant, 100 id. 585; 125 U. S. 345; State v. County of Kings, 125 N. Y. 320; In re Lowden, 89 id. 548.) The plaintiff cannot maintain an action against the sheriff because of any alleged error or want of authority on the part of the comptroller in making the assessment. (Livingston v. Hollenbeck, 4 Barb. 9; Hyatt v. Bates, 40 N. Y. 164, 161; Mayor, etc., v. Davenport, 92 id. 613; Louisiana v. Jumel, 101 U. S. 711.)</p>

This was an action to recover damages for injuries received by plaintiff, through the alleged negligence of defendant, while a passenger on one of its horse cars. The facts, so far as material, are stated in the opinion.

This action was brought by plaintiff, a railroad company, to recover from defendant, a steamship company, the sum of $1,647.94, with interest from January 29, 1883, for freight charges paid and earned by plaintiff on certain bales of cotton shipped from Gainesville, Texas, to New York, on a through shipment to Liverpool. The facts, so far as material, are stated in the opinion.

<p>1. Extortion—Felony.</p> <p>Extortion is a felony under the definition of the Penal Code.</p> <p>2. Jury—Peremptory challenges.</p> <p>Where the counsel for the defendant concedes that the court has discretion to permit a peremptory challenge of a juror after he has been sworn, it is no abuse of discretion to give the permission so to do upon the assurance of the prosecuting officer.</p> <p>3. Objection—Specific.</p> <p>An objection must be sufficient to call fairly the attention of the court to the precise point to be decided, and must be specific and must not be ambiguous and misleading.</p> <p>4. Conspiracy—Boycott.</p> <p>One may refuse to deal with a firm because of a conviction that it does not give honest- compensation for labor and may ask his friends or the public to do the same thing, and the conduct may produce injury to the business criticised without thereby becoming illegal.</p> <p>5. Same.</p> <p>But where, on the other hand, one influences his friends and the public to inflict the same injury of withdrawal of custom without just or excusable reason and by fraudulently concealing the fact that it does not, and pretend ing that it does, exist, and using official power and influence to make effective the deception and to force and compel unwilling dealers to desist from their purchases and that for the sole purpose of extorting money, then the resultant injury will be unlawful.</p> <p>6. Cbiminal law—Reasonable doubt.</p> <p>A reasonable doubt cannot be said to exist where the jury are so firmly convinced of the facts necessary fo establish the prisoner’s guilt that, if it was a very grave and serious matter affecting their own affairs, they would not hesitate to act upon such conviction.</p>

<p>Although a surviving partner takes the legal title to the partnership assets they come to him impressed with a species of trust, founded upon his duty to realize upon them and pay therefrom the firm debts and pay over the share of any balance, due to the estate of the deceased partner, to the representatives thereof.</p> <p>S. and W. were partners ; the firm had loaned money to M. which was secured by mortgages on premises upon which "was a prior mortgage. . Pending an action to foreclose the firm mortgages, the partners entered into an agreement to dissolve the partnership, they “to continue to hold as tenants in common the debt ” of M., each to have and own an undivided half interest therein. All “ other” bonds, mortgages, debts and partnership property to belong to W., who assumed and agreed to pay the firm debts, and to hold S. “harmless and free from any liability on account” of the partnership. S. soon after died; the foreclosure suit was continued in the name of W. as survivor. The action was defended- and W. paid the costs of the litigation, without any request on the part of any representative of the deceased partner. A judgment of foreclosure was obtained, the premises sold and bid off by W. who took title in his own name. W. subsequently executed an assignment to plaintiff for the benefit of creditors; said premises were included in the property assigned. The prior mortgage was thereafter foreclosed and on foreclosure sale the premises were purchased by plaintiff as such assignee, and then sold by him for §2,500 more than the purchase price. In an action against the executor of S., among other things to recover one-half the expenses paid by W. in the first foreclosure suit, held, that under the dissolution agreement the parties remained substantially partners as to the M. debt, that although the words “tenants in common ” were used, the plain meaning of the instrument was that they were to continue to hold this firm property as they had been holding it; that as to it therefore W., upon the death of S., was clothed with all the rights of a surviving partner, and had the right to incur proper, necessary and reasonable expenses in attempting to collect the debt, and to charge the estate of his deceased partner with one-half thereof.</p> <p>Also held, that the agreement on the part of W. to assume and pay all partnership debts and to hold S. “harmless and free from any liability on account ” of the partnership, did not include the disbursements or expenses so made or incurred.</p> <p>W. also made payments of interest on the prior mortgages ; as to all such payments as well as to payments for expenses made more than six years before the commencement of the action, defendant pleaded the Statute of Limitations. Held, that the defense was not sustainable; that a cause of action for contribution did not immediately arise upon payment of any item of disbursement, whether for expenses or interest, and the statute did not begin to run until, upon termination of the litigation and sale of the premises, it could be determined whether the moneys realized would be sufficient to reimburse plaintiff for the advances made.</p> <p>Also held, that defendants were entitled to credit in the account for the difference between the sum paid by plaintiff on the foreclosure sale, and the price received by him for the premises; that when he purchased the property at the sale under the judgment of foreclosure of the firm mortgages, he took and held it as representing the debt secured, and it became his duty so to treat it; that plaintiff as his assignee had no better or other right, and when he bid in the property under the judgment on foreclosure of the prior mortgage, he took it with this burden or obligation of the survivor impressed upon it, and when he sold at an advance the estate of the deceased partner was entitled to its proportionate share.</p> <p>It seems the single fact that disbursements were made by a surviving partner in attempting to collect a partnership debt, is not conclusive upon the question of the liability of the estate of a deceased partner to contribute; the disbursement must be reasonable in amount, made in good faith, and for a purpose fairly appropriate to the recovery of the debt.</p>

This action was brought by plaintiff as executrix of the will of Asiel G. Beaver, deceased, against the Ulster County Savings Institution to recover the amount of a deposit and the accrued interest. The present defendants, administrators of John O. Beaver, deceased, were substituted as defendants. The facts, so far as material, are stated in the opinion. The deposit made was not a gift within the requirements of law.

<p>'Appeal from judgment -of the supreme court, general term, first department, affirming judgment of court of general sessions convicting defendant of arson, and affirming orders denying motions for arrest of judgment and a new trial.</p>

Swift, deceased, which affirmed an order assessing the value of the property of said decedent subject to taxation under the Collateral Inheritance Tax Act. The facts, so far as material, are stated in the opinion. The statute known as the Collateral Inheritance Tax Law does not impose a property-tax, but a charge for the privilege of acquiring property.

The facts, so far as material, are stated in the opinion. The general law for the incorporation of villages regulates the proceeding in question. The proceedings prior to the order for summoning the jury, were invalid. (Laws of 1870, chap. 291, § 1.) The method adopted by the board in summoning a jury was not warranted by the statute, or the Constitution.

The-facts, so far as material, are stated in the opinion. The order of the General Term of the Supreme Court confirming commissioners’ report is a final order affecting a substantial right made in a special proceeding, and is appealable. (In re Byers, 72 N. Y. 1, 4; R. & S. R. R. Co., 43 id. 147; In re S. B. R. R. Co., 128 id. 93; Code Civ.

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made the last Tuesday of March, 1892, which granted a motion by plaintiff for a new trial, upon exceptions ordered to be heard in the first instance by said court to the granting of a motion for a nonsuit.</p> <p>This action was brought to recover damages for the death of Frederica Engel, plaintiff’s intestate, alleged to have been caused by the negligence of defendant.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>An owner of real estate is not liable for the negligent act of an independent contractor, who is in every way competent, in a case where the injury is not occasioned by the doing of the work, but because of the work being done in a negligent manner. (McCafferty v. S. D. & P. M. R. Co., 61 N. Y. 178; Earl v. Beadleston, 10 J. & S. 294; Hexamer v. Webb, 101 N. Y. 377; King v. N. Y. C. & H. R. R. R. Co., 66 id. 181; Harrington v. Vil. of Lansingburgh, 110 id. 145; Ferguson v. Hubbell, 97 id. 510; St. Peter v. Denison, 58 id. 416; Martin v. T. Assn., 30 Hun, 391; Schile v. Brokhahus, 80 N. Y. 618; Bibbs v. N. & W. R., 31 Am. Law Reg. & Rev. 319.)</p> <p>As between the defendant and the injured parties in this case, there was, prior to the contract with Wagner, an existing and continuous legal duty or obligation arising out of the relations of the parties, which the defendant as owner of the premises with the existing wall, owed to the injured parties as occupants of the adjoining premises, and this duty or obligation was, in so far as the exercise of ordinary care and vigilance would enable it to do so, to keep the wall in question in such condition that it would not by any insecurity fall upon or injure the adjoining occupants. (Mullen v. St. John, 57 N. Y. 567; City of Buffalo v. Holloway, 7 id. 493; S. & R. on Neg. § 898.) The injury resulted from the omission to perform the duty owed by the defendant to the deceased. (S. & R. on Neg. §§ 83, 84, 175.) The questions arising out of the doctrine of respondeat superior do not arise in or apply to this case. (McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178.) In any case where there is an existing legal duty or obligation upon a party owing to another, the party owing the duty cannot be relieved from the performance of it by any act of his or any contract with a third peison however skillful he may be. (Storrs v. City of Utica, 17 N. Y. 104; S. & R. on Neg. §§ 15, 83, 84, 175; Masterton v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 247; King v. N. Y. C. & H. R. R. R. Co., 66 id. 181; Brusso v. City of Buffalo, 95 id. 679.) The proofs in this case would support a finding by the jury that the fall of the wall resulted from the performance of what Wagner agreed to do, or that it fell by reason of defects which existed when the contract was made, of which defects Wagner had no notice, but which defendant was presumed to know of or to guard against. (Bower v. Prate, L. R. [1 Q. B.] 321; Parey v. Ashton, Id. 314; Baltimore v. O’Donnell, 52 Md. 110.) The decision of the Special Term in this case is not in harmony with the opinion of the General Term upon its order for a new trial; that constituted the law of this case, and the doctrine as laid down in said opinion is sound. (Woodman v. R. R. Co., 149 Mass. 335.)</p>

This action was brought by plaintiff, as trustee under the will of Rachel Miller, deceased, to have his account settled and the balance in his hands distributed to those entitled. The facts, so far as material, are stated in the opinion. This case must be decided by the law as it existed and was understood at the date of this will. At the date of the will, 1847, “heirs” and “next of kin ” were used in wills to include in their meaning the husband or widow.

This action was brought to recover the value of twenty barrels of brandy. The facts, so far as material, are stated in the opinion. The plaintiff should have been required to elect at the commencement of the trial upon which ground it would proceed.

<p>Appeal' from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 21, 1891, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term confirming the report of commissioners in partition.</p> <p>This was an action for partition.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The complaint should have been dismissed because the plaintiff was neither in actual nor constructive possession of the premises. (Code Civ. Pro. §§ 1532, 1537; Sullivan v. Sullivan, 66 N. Y. 37; Florence v. Hopkins, 46 id. 182; Bennett v. Bundy, 13 Wkly. Dig. 160; Burhans v. Burhans, 2 Barb. Ch. 398; O'Dougherty v. Aldrich, 5 Den. 385; Brownell v. Brownell, 19 Wend. 367; Hewlett v. Wood, 62 N. Y. 78; Maloney v. Cronin, 44 Hun, 270; Wainman v. Hampton, 110 N. Y. 429; Matthewson v. Johnson, Hoff. 563; Clapp v. Bromagen, 9 Cow. 530, 564; Feed v. Childs, 4 How. Pr. 125; Jenkins v. Van Schaick, 3 Paige, 242; Ferriss v. Smith, 17 Johns. 221.) The judge erred in refusing to adjudge the mortgage held by Mary P. Stoddard a valid lien, and to direct its payment. (Code Civ. Pro. §§ 1540, 1543.) When the court declined to pass upon the issue raised by the pleadings and proofs, as to the validity of the mortgage held and owned by the defendant, Mary P. Stoddard, it should have dismissed the complaint. (Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Peyser v. Wendt, 87 N. Y. 322; Mahr v. N. U. F. Ins. Co., 127 id. 452; Code Civ. Pro. §§ 1542, 1543, 1545; Kortright v. Cady, 21 N. Y. 364; Bryan v. Butts, 27 Barb. 503.) The mortgage was a valid and subsisting lien. (Derby v. Yale, 13 Hun, 277; Daggett v. Tallman, 8 Conn. 188; Cowen & Hill’s Notes, 318, 320; Willard’s Eq. Juris, 44; Story’s Eq. § 753; 2 Starkie on Ev. 597, 598; C. Bank v. Heydorn, 48 N. Y. 272; Bean v. Tonnelle, 94 id. 381; Jackson v. DeLancy, 11 Johns. 375.) The court erred in refusing to hold that the defendant, Mary P. Stoddard, is entitled to retain possession of the premises until the plaintiff has redeemed the Mortgaged premises by paying the amount due her on the mortgage. (Streeter v. Shultz, 45 Hun, 406; M. A. Church v. B. Church, 73 N. Y. 82; Howell v. Leavitt, 95 id. 617; Miner v. Beekman, 50 id. 337; Van Duyne v. Thayer, 14 Wend. 233; Phyfe v. Riley, 15 id. 248; Fox x. Lipe, 24 id. 164; Trimm v. Marsh, 54 N. Y. 610; Bolton x. Brewster, 32 Barb. 390; Vanderkemp v. Shelton, 11 Paige, 35; 2 Barb. Ch. 199; Bell v. Mayor, etc., 10 Paige, 50, 70.)</p> <p>The issue as to title by adverse possession tendered by the pleadings was properly tried and properly decided by the trial court. (Code Civ. Pro. §§ 994, 997, 1543; Knapp v. Burton, 7 Civ. Pro. Rep. 448; 120 N. Y. 589.) The plaintiff had such possession as entitled him to maintain partition. (Code Civ. Pro. § 368; Pope v. Harnmer, 74 id. 245; LaTourette v. Decker, 18 N. Y. Supp. 840; Hulse v. Hulse, 5 id. 747; Wainman x. Hampton, 110 N. Y. 429; Conlon v. Rhodes, 87 id. 348; Homey v. Goings, 13 Ill. 95.) Plaintiff was not required to redeem by paying the amount due upon the Weston mortgage (if anything) before the land could be partitioned. (Johnson v. Oppenheim, 12 Abb. [N. S.] 449; Code Civ. Pro. §§ 521, 1540, 1543, 1578; Meigs x. Wells, 5 Civ. Pro. Rep. 106, 107; Edwards v. Woodruff, 90 N. Y. 396-400; Payne v. Grant, 23 Hun, 134; Parker v. C. T. Co., 3 N. Y. S. P. 175; Joy v. White, 6 N. Y. Supp. 571; Hubbard v. Dayton, 32 Hun, 220; Jones on Mort. § 1198; 16 Hun, 130; 60 id. 292.)</p>

This action was brought by plaintiffs to recover commissions claimed to have been earned by them as real estate brokers. • The plaintiffs were real estate brokers in the city of Yew York, and the defendant owned certain real estate in that city.

The nature of the action and the facts, so far as material,, are stated in the opinion. The referee erred in finding that the defendants, Young and Tripp, furnished materials to he used in the erection of Boyd’s building, in conformity with the contract between Robinson and Boyd, or that they were entitled to a lien therefor.

This action was brought to set aside an award made by appraisers under a policy of insurance issued by defendant, a fire insurance company, to one James J. Bradshaw, deceased, and to recover damages for the destruction by fire of the property insured. • The facts, so far as material, are stated in the opinion. It was not necessary to give any notice to the plaintiffs of the time or place of the meeting or deliberation of the appraisers. (Hall v. N. F. Ins.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made January 11, 1892, which affirmed a judgment in favoi of the defendant, Henry W. Strauss, entered upon an order of the court on trial, at Circuit which dismissed the complaint as tc said Strauss.</p> <p>The nature of the action and the facts, so far as material,, are stated in the opinion.</p> <p>The trial court 'erred in ruling that defendant Strauss was proved to be a special partner. (Ropes v. Colgate, 17 Abb. [N. C.] 136; Van Ingen v. Whitman, 62 N. Y. 513; Plyer v. G. A. Ins. Co., 121 id. 689; M. C. Bank v. Gould, 5 Hill, 315.) If the trial court erred in holding that the appellant had proved the special partnership, such error was vital and affected the appellant’s whole case injuriously. (Winchell v. Winchell, 100 N. Y. 159; Nickerson v. Ruger, 76 id. 279; Loeb v. Willis, 100 id. 231; Van Ingen v. Whitman, 62 id. 513; Rehberg v. Mayor, etc., 91 id. 141.) The trial court erred in dismissing the complaint on the ground that there was no evidence to make the defendant Strauss liable as a general partner. (Sharp v. Hutchinson, 100 N. Y. 553; F. N. Bank v. Whitney, 4 Lans. 34.) It was error to refuse plaintiff’s request to be allowed to go to the jury on the question of the liability of the defendant Strauss as a general partner. (M. C. Bank v. Gould, 5 Hill, 309; M. N. Bank v. Palmer, 30 N. Y. S. R. 509; Loomis v. Hoyt, 20 J. & S. 287; 1 R. S. 767, §§ 21, 22; Fanshawe v. Lane, 16 Abb. Pr. 71; Galvin v. Mayor, etc., 112 N. Y. 229.)</p> <p>Leo W. Hoexter, being an infant, did not convert the limited partnership into a general partnership, or make the respondent liable as a general partner. (Ames v. Downing, 1 Bradf. —; Clapp v. Lacey, 35 Conn. 463; Piper v. Poppenhausen, 43 N. Y. 68; Avery v. Fisher, 28 Hun, 508; Moley v. Brine, 120 Mass. 324.) The commencement of the suit in the Court of Common Pleas, and the appointment of the respondent as receiver, did not make the respondent liable as a general partner. (Ogden v. Arnot, 28 Hun, 148; Hogg v. Ellis, 8 How. Pr. 473; Snyder v. Leland, 127 Mass. 291; Innes v. Lansing, 7 Paige, 583; Whitewright v. Stimpson, 2 Barb. 379; Bell v. Merrifield, 28 Hun, 219; Durant v. Abendroth, 97 N. Y. 132, 134; Hayes v. Heyer, 3 Sandf. 293; Van Alstyne v. Cook, 26 N. Y. 489.) The court was correct in ruling that the testimony of the witness Young did not show that the respondent was a general partner. (Cassidy v. Hall, 97 N. Y. 159; Painton v. N. C. P. Co., 83 id. 7; Edington v. M. L. Ins. Co., 67 id. 185; S. & S. P. R. Co. v. Thatcher, 11 id. 102; Farman v. Town of Ellington, 46 Hun, 41; Derrick v. Emmons, 38 N. Y. S. E. 481.)</p>

This action was brought to enjoin the further maintenance and operation of the defendants’ elevated railroad in front of the plaintiff’s premises, Bo. 143 West Fifty-third street, in the city of Bew York, and to recover such damages as plaintiff had sustained in consequence of such maintenance and operation.

This was an action to restrain defendants, who were plaintiff’s lessees, from removing from the demised premises certain fixtures. On May 1, 1884, the plaintiff executed to the firm of Frederick Loeser & Company, of which firm the plaintiff was a member, a lease of the premises known as numbers 10 and 12 Tillary street, Brooklyn, for eleven years from said date.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s remedy, assuming there was one, was not by an action against the board of supervisors, but by mandamus or certiorari. The decision of that body on the plaintiff’s claim was final until reviewed and reversed in the proper way and by the proper method of procedure. That method was not by an action at law to recover the moneys claimed. (Strough v. Bd.

This was an action to recover taxes paid on the property of the Port Jervis and Monticello railroad in the town of Thompson, Sullivan county, New York, for the years, 1871 to 1887, inclusive, and appropriated by the county treasurer to the payment of county indebtedness instead of being applied as required by chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. The facts, so far as material, are stated in the opinion.

This action was brought to recover for services rendered and for money paid for the defendant’s testatrix, Elizabeth Davis. 0 The defendant put in issue the allegations of the complaint and set up as a counterclaim that the plaintiff and his wife executed tc Mrs. Davis their joint and several bond in the penal sum of $3,500, conditioned to pay her the sum of $210 on the 6th day of April, 1881, and $175 “ each year thereafter during the natural life of Elizabeth Davis,” but…

This action was brought to foreclose mechanics’ liens filed by the plaintiffs upon certain premises in the city of ííew York owned by the defendant Margaret Paddock, for labor done, and materials furnished the defendant Allen H. Wood, who it appeared had held a contract from defendant Paddock for the purchase of said premises. The contract was executed February 18, 1889.

This action was brought by James It. Wardlaw to recover his salary as assistant engineer in the department of public works in the city of Mew York, from July 31, 1886, the date of his suspension, to January 30, 1890, the date of his discharge. Said plaintiff having died intestate while the action was pending, his administratrix was substituted as plaintiff. The facts, so far as material, are stated in the opinion. The common council has power to appoint city surveyors.

The facts, so far as material, are stated in the opinion. The assesors had no power to make any changes or corrections after the tax was paid.

. Appeal from order of the General Term of the Supreme Court in the first judicial department, made December 29, 1892, which affirmed a decree of the surrogate of the county of Mew York, imposing a collateral inheritance tax upon a legacy to Grace Church in the city of Mew York ana upon a legacy to the Metropolitan Museum of Art in the city of Mew York, given in the will of Catharine L. Wolfe, deceased. The facts, so far as material, are stated in the opinion.

This action was commenced to procure a judgment directing the defendants to surrender to the plaintiff a certain bond and mortgage for $2,000, which plaintiff alleged belonged to her. She claimed title by virtue of an assignment from the then owner of the bond and mortgage, one Albert Hill, exeexited a short time prior to his death. The defendants denied the material allegations of the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. Ho recovery can be had under the evidence and the findings of the court. (Russell v. Pistor, 3 Seld. 171; Rindskopt v. F. L. & T. Co., 58 Barb. 36; Kelly v. D. Church, 2 Hill, 105; Thompson v. Blanchard, 4 Comst. 303.) The sale was void because the property was not sold in the inverse order of alienation. (Willing v. Ryerson, 94 N. Y. 98; Gill v. Lyon, 1 Johns.

This was an action to recover damages because of defendant’s refusal to receive two certificates of stock, which purported to have been issued by it, and to transfer the stock represented by them to plaintiff and admit it as a shareholder in defendant’s corporation. The facts, so far a material, are stated in the opinion. The motion to dismiss the complaint should have been granted.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. A party may appeal from the order appointing commissioners and from the order confirming their report, although the act does not make provision for same. (In re City of Buffalo, 17 N. Y. S. R. 371.) The papers upon which this proceeding is founded do not show that the notice required by chapter 183 has been served or given as required by the statute.

’ This action was brought to recover damages for alleged negligence on the part of defendants. The facts, so far as material, are stated in the opinion. in any view of the evidence, a verdict might justly have been for the plaintiffs, this case should not have been taken from the jury. (Sheridan v. R. R. Co., 36 N. Y. 39; Train v. Holland, 62 id. 598; Pratt v. Ins.

This was an action for the foreclosure of a mortgage upon lands in Cook and La Salle counties in the state of Illinois. The instrument in suit was in form a warranty deed, and was executed by the defendants to plaintiff October 7, 1876. The facts, so far as material, are stated in the opinion.

This was an action to recover damages brought by plaintiffs as transferees of two warehouse receipts issued by defendant. The plaintiffs are brokers in the city of New York, and the defendant a warehousman in that city. The defendant on the 28th of March, 1885, issued to one Max Von Angern two Avarehouse receipts similar in all respects except as to the name of the vessel in Avhicli the merchandise was imported and the quantity Avhich was delivered.

The facts, so far as material, are stated in the opinion. The award of the arbitrators was definite, final and certain. (Curtis v. Gokey, 68 N. Y. 300; Ludlow v. Grozart, 3 Johns. Cas. 534; Ott v. Schroeppel, 5 N. Y. 482; Jackson v. Ambler, 14 Johns. 96; Rogers v. Tatum, 25 N. J. L. 281; Wilson v. Brown, 82 Penn.

This action was brought to recover $500 paid by plaintiff on executing a contract for the purchase of land and $200 paid for examination of title and -damages for defendant’s failure to comply with the contract by conveying the premises free of incumbrances. The facts, so far as material, are stated in the opinion.

This was an action by an abutting owner of property on Third avenue in the city of Rew York, to restrain the operation and maintenance by defendants of their road in said street and for damages. The facts, so far as material, are stated in the opinion. The judgment was rendered upon the theory that all benefits were to be excluded from consideration, except those peculiar to the specific houses in question.

This was an action upon a guaranty set forth in the opinion, which also states the facts, so far as material. The exception to the guaranty being received in evidence, was well taken.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 22, 1892, which denied a motion for a new trial and ordered judgment in favor of defendant on a nonsuit granted at Circuit.</p> <p>This was an action of trespass, alleged to have been committed by defendant by building a fence upon plaintiff’s premises and thereby closing a lane between the lands owned by the plaintiff and defendant.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The conveyance of lot No. 16 from James T. Smith to Nathaniel Garrow, which bounds the lot by the alley or lane in question, and refers to the map on file, made by Lewis Clark, which shows the lot as abutting upon the lane, embraced the land to the center of the lane, although the width of the lot, as stated, would not include any part of it. (Child v. Starr, 4 Den. 369; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Perrin v. N. Y. C. R. R. Co., 36 id. 120; In re Ladue, 118 id. 220; Haberman v. Baker, 128 id. 259; City of Buffalo v. Pratt, 131 id. 298; Sizer v. Devereux, 16 Barb. 160; Varick v. Smith, 9 Paige, 553; Wallace v. Fee, 50 N. Y. 694; White’s Bank v. Nichols, 64 id. 65; Mott v. Mott, 68 id. 246; Jackson v. Hathaway, 15 Johns. 447.) Where an owner of land lays it out into village lots, intersected by streets and avenues, and sells lots by reference to a map, which he has made and filed, on which such streets are delineated, the streets on the map become an easement annexed to the estate granted. The right thus created becomes appurtenant to the land conveyed, and passes with it under subsequent conveyances, though not expressly referred to. (Potter v. Iselin, 31 Hun, 134; Taylor v. Hopper, 62 N. Y. 649; 2 Hun, 646; Smith v. Mayor, etc., 68 N. Y. 557; Huttemier v. Albro, 18 id. 48; Townsend v. Hayt, 51 id. 656; Cox v. James, 59 Barb. 144; Pratt v. B. C. R. Co., 19 Hun, 30; Hills v. Miller, 3 Paige, 254; Burr v. Mills, 21 Wend. 296; Lansing v. Wiswall, 5 Den. 213; Wells v. Garbutt, 132 N. Y. 430.) The plaintiff or her grantors would not lose the appurtenant right of way by simple nonuser. There is no evidence of abandonment. The fact that there is no proof of the use of the lane by plaintiff’s grantors from 1866 to 1882, can have no effect to impair the plaintiff’s right. (Townsend v. McDonald, 12 N. Y. 381; Smyles v. Hastings, 22 id. 217; Pope v. O'Hara, 48 id. 447; Snell v. Levitt, 39 Hun, 227; 110 N. Y. 595; Welsh v. Taylor, 50 Hun, 137; 134 N. Y. 450; Jewett v. Jewett, 16 Barb. 150; Crain v. Fox, 16 id. 184; Longendyck v. Anderson, 59 How. Pr. 1; Day v. Walden, 46 Mich. 575; Richle v. Herrlings, 38 N. J. 20; Arnold v. Stevens, 24 Pick. 106; Hayford v. Spokefield, 100 Mass. 49; Code Civ. Pro. § 368; Hinkley v. Cronse, 125 N. Y. 730; Corning v. Gould, 16 Wend. 531.) The representations of William Hosmer to Irish, during the negotiations for the purchase of plaintiff’s lot were competent evidence of the fact that the grantor had not abandoned the right of way, and that he intended to pass title thereto as appurtenant to the land. (Abeel v. Van Gelder, 36 N. Y. 513; Ahern v. Goodspeed, 72 id. 108; Nilch v. Louis, 31 Ill. 446; Dempsey v. Kipp, 61 N. Y. 471; McMaster v. Ins. Co., 55 id. 222; Drown v. Thurber, 77 id. 613; Sprague v. Hosmer, 82 id. 470; L. M. Co. v. S. Co., 88 id. 592.) The defendant having taken title to lot number fifteen, under a deed which recognized in express terms the public right of way in the lane, cannot claim the land by adverse possession. (Bridges v. Wyckoff, 67 N. Y. 130; In re Dept. of Parks, 73 id. 560; Ratgaber v. Tonawada, 13 N. Y. Supp. 957.) To establish title by adverse possession the defendant must prove actual occupation or possession, founded upon paper title, for a period of twenty years. (Smyles v. Hastings, 22 N. Y. 217; Miller v. L. I. R. R. Co., 71 id. 380; Pope v. Hanmer, 74 id. 240; Town of East Hampton v. Kirk, 68 id. 459; Kencken v. Voltz, 110 Ill. 264; Marble v. Price, 54 Mich. 466; Kane v. N. Y. E. R. R. Co., 125 N. Y. 164; Story v. N. Y. E. R. Co., 90 id. 122; Lahr v. M. E. R. Co., 104 id. 268; Hussner v. B. C. R. Co., 114 id. 433; Shephard v. M. R. Co., 117 id. 448; Abendroth v. M. R. Co., 122 id. 1; Baron v. Korn, 51 Hun, 401; Allen v. Ormond, 8 East, 4; Cushing v. Adams, 18 Pick. 110; Hastings v. Livermore, 7 Gray, 194; N. T. Co. v. Smith, 15 Barb. 855; S. R. Co. v. A. & R. R. Co, 5 Hill, 170.)</p> <p>In order to maintain trespass actual possession or title must be shown. (Danihee v. Hyatt, 12 N. Y. Supp. 465; Edwards v. Noyes, 65 N. Y. 125.) The plaintiff failed to show any actual possession of the locus in quo, either by himself, or by any of the former-owners of the premises at any time. (Edwards v. Noyes, 65 N. Y. 125; Thompson v. Burnhans, 61 id. 52; Munro v. Merchant, 28 id. 9; Stuyvesant v. Tompkins, 9 Johns. 465 Mott v. Mott, 68 N. Y. 246; Augustide v. Britt, 15 Hun, 395; Wetmore v. Law, 34 Barb. 515; Jones v. Cowman, 2 Sandf. 234; Woodruff v. Paddock, 130 N. Y. 618; Wallace v. Fee, 50 id. 694; English v. Brennan, 60 id. 609; White's Bank v. Nichols, 64 id. 65; Patten v. N. Y. E. R. R. Co., 3 Abb. [N. C.] 341.) The word “ appurtenances ” in the plaintiff’s deed, did not extend the grant so as to include-the land in question. (Ogden v. Jennings, 62 N. Y. 526 Jackson v. Hathaway, 15 Johns. 447.) The plaintiff can only recover on the strength of her legal title. (Jones v. Cowman, 2 Sandf. 334.) The public never acquired any rights in this lane. The filing of a map showing a street or lane, vests no rights therein in the public, unless used by them or formally accepted by the proper authorities. (Holdane v. Trustees, etc., 21 N. Y. 474; Fonda v. Borst, 2 Keyes, 48; Ludlow v. Oswego, 25 Hun, 260.) Any easement that ever existed in the lane in question in favor of the former owners of lot Ho. 16-was abandoned by them long prior to plaintiff’s acquiring title, and being once abandoned was extinguished forever. (Crain v. Fox, 16 Barb. 184; Corning v. Gould, 16 Wend. 545; Snell v. Leavitt, 110 N. Y. 595; Woodruff v. Paddock, 130 id. 618.) The court committed no error in taking the-case from the jury and granting the motion for a nonsuit. (Patridge v. Russell, 2 N. Y. Supp. 529; Petit v. Shepard, 32 id. 103; Green v. Collins, 86 id. 254; Barclay v. Howells, 6 Pet. 499; Brooklyn v. Kunzman, 94 N. Y. 276; Curtis v. Aaronson, 7 Atl. Rep. 836; Cronk v. Wilson, 40 Hun, 269.) If the conveyance under which plaintiff claims excludes the Zooms in quo she cannot recover, no matter how weak the title of the defendant, who is in possession, may be. She can only recover on the strength of her own title. (Jones v. Cowman, 2 Sandf. 238.)</p>

This action was brought by plaintiff as assignee of one Vosteen, who was lessee of certain premises in the city of FTew York, to recover rent alleged to have been paid to defendant by mistake. The facts, so far as material, are stated in the opinion. The court erred in admitting the inquisition.

Anderson, entered upon a decision of the court on trial at Circuit. This action was brought for the foreclosure of a mortgage executed by Martin H. Stufflebun to Richard Miller, and assigned by him to Arnold Wise who assigned the same to Allen S. Miller who, on a subsequent assignment guaranteed its payment; said mortgage and guaranty were afterwards assigned to plaintiff.

This action was brought against defendants as trustees of the Wallace Electric Manufacturing Company, which was organized under the General Manufacturing Act (Chap. 40, Laws of 1848), to charge them because of an alleged failure to file an annual report, with personal liability for the amount of a judgment recovered by plaintiff for professional services as the attorney and counsel of said company. 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 fourth judicial department, entered upon an order made November 17, 1891, which affirmed a judgment in favor of defendants entered upon the report of a referee.</p> <p>This was an action in equity brought by plaintiff, a member of the Oneida Community, an unincorporated association, against the Oneida Community (Limited), a domestic corporation, and certain individuals alleged to be members of said Oneida Community.</p> <p>The relief sought was that an alleged expulsion of plaintiff from said Oneida Community be adjudged void, and that he be adjudged a member thereof; that an alleged dissolution of said community be deemed illegal and void; that the Oneida Community (Limited) should be adjudged to hold the property in its possession in trust for plaintiff, and the other members of the Oneida Community; that the members of the latter be adjudged partners or owners of such property as tenants in common, and that an accounting be had, and a decree be rendered for a division and distribution of the same between them.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The alleged expulsion of Mr. Burt is illegal and void. (Wylde v. N. R. R. Co., 53 N. Y. 156; Grand Lodge v. Cohn, 20 Ill. App. 335; Gaus v. Wilhite, 2 Dana, 170; Lafond v. Deems, 81 N. Y. 513; Austin v. Searing, 16 id. 123; People v. Medical Society, 32 id. 194; Labouchere v. Warncliffe, L. R. [13 Ch. Div.] 347; Hutchinson v. Lawrence, 67 How. Pr. 38; Chambers v. Clearwater, 1 Keyes, 310; Queen v. Justices, 2 B. 753; Rich ardson v. Welcome, 6 Cush. 331; Cooley on Const. Lim. [5th ed.] 310; Wills v. Gates, 18 Barb. 554; Angel & Ames on Corp. [10th ed.] 420; People v. S. F. B. Socy., 24 How. Pr. 216; Austin v. Searing, 16 N. Y. 112; Heath v. Prest., etc., 7 Abb. Pr. 251; Rorke v. Russell, 2 Lans. 244-248; Dunbar v. Trustee, etc., 5 Cow. 462; People v. Med. Socy., 24 Barb. 570; Bacon on Ben. Soc. §§ 99, 100; In re L. I. R. R. Co., 19 Wend. 37; Evans v. P. Club, 50 Penn. St. 170; Baggs Case, 11 Co. 92; Roehler v. M. A. Socy., 22 Mich. 86; Hassler v. P. M. Assn., 14 Phila. 233; Murdock v. P. Academy, 12 Pick. 244; Hutchinson v. Laurence, 67 How. Pr. 38; 40 Hun, 546; Hopkins v. Marquis of Exeter, L. R. [2 Eq.] 63; Loubat v. Le Roy, 40 Hun, 546.) Burt never received any written charges or notice of charges which he was entitled to receive as a necessary preliminary to any proceedings to expel him. (People ex rel. v. Schmkidt, 24 How. Pr. 221; Wechtel v. N. W. Society, 84 N. Y. 30; Bacon on Ben. Soc. §§ 101, 102.) Burt never received any notice that the council or business board, or any body of members of the community intended to act upon the matter of his expulsion. He was entitled to such notice specifically stating the time and place of such proceedings, and also entitled to be heard in his defense. The omission to serve him with such notice is fatally defective, and of itself renders all proceedings null and void. (Loubat v. Le Roy, 40 Hun, 551; Gebhard v. N. Y. Club, 21 Abb. [N. C.] 248; People ex rel. v. Schmidt, 24 How Pr. 221; Wechtel v. N. W. Society, 84 N. Y. 30; Hutchinson v. Lawrence, 67 How. Pr. 38; Bacon on Ben. Soc. 102, 103; People ex rel. v. Y. M. F. M. B. Society, 65 Hun, 359; People ex rel. v. M. M. Union, 47 id. 273; Labouchere v. Earle, 28 W. R. 367; Oleny v. Brown, 51 How. Pr. 92; Whitey v. Brownell, 2 Daly, 329; Capel v. Child, 2 C. & J. 558; Saltus v. Everett, 20 Wend. 140; Austin v. Searing, 16 N. Y. 123; Angell & Ames on Corp. 439-459; People v. Bachelor, 22 N. Y. 132; Lafond v. Deems, 8 Abb. [N. C.] 344.) The plaintiff’s right to maintain this action is consistent with the covenants of the contract of association. This assumes that the contract is good and valid and that he is still bound to its obligations. The original members, of whom the plaintiff is one, entered into association without signing written articles. (R. M. Co. v. Ripley, 77 U. S. 961; Fry on Spec. Perf. § 286; Story’s Eq. Juris. § 736; Smith on Equity, 220; 1 Add. on Cont. § 393; U. S. v. Peck, 102 U. S. 64; Lloyd v. Loring, 6 Ves. 733; Belton, v. Hatch, 109 N. Y. 294; Tarbell v. West, 86 id. 280; Bispham’s Eq. §§ 198, 219, 232.) The Oneida Community being a mere voluntary association, is deemed to be a mere partnership in the courts of this state. (Fairchild v. Fairchild, 64 N. Y. 471; McMahon v. Rauhr, 47 id. 70; Wells v. Gates, 18 Barb. 554; Gates v. Frazer, 6 Ill. App. 229; Morris v. Peckham, 58 Mich. 476; Buchan v. Sumner, 2 Barb. 165; Story on Cont. [4th ed.] 266, 267, § 203; Pars. on Part. 6, §§ 13, 208; Nubans v. Gillies, 75 N. Y. 202; Collumb v. Read, 24 id. 502; Bulkley v. Bulkley, 11 Barb. 43; Menagh v. Whitehall, 52 N. Y. 158; Gosele v. Bimeler, 14 How. [U. S.] 172.) The real estate was contributed and acquired by the members for the use, benefit and profit of file association or partnership while the association or partnership lasted. FTo valid trust could have been created by agreement of the parties so as to vest the same in the property holders as trustees for the uses of the association. The only trust was that which resulted from the relations of the parties — a resulting trust created by rule of law. (Girard on Tit. 232-236, 260-262, 287-302, 323, 362, 607; McCanghal v. Ryan, 27 Barb. 401; 1 E. S. 726, §§ 36-39; Kirkpatrick v. Johnson, 15 N. Y. 322; Boynton v. Hoyt, 1 Den. 53; Gott v. Cook, 7 Paige, 521; Willard’s Eq. Juris. [Potter’s ed.] 424, 569-598, 736; Maurice v. Maurice, 43 N. Y. 303; Levy v. Levy, 33 id. 97; Bascom v. Albertson, 34 id. 584; Holmes v. Mead, 52 id. 332, 339; White v. Howard, 46 id. 144; Tyler’s Am. Eccl. Law, § 102; Petty v. Tooker, 21 N. Y. 267; Adams v. Perry, 43 id. 487; Holland v. Alcock, 108 id. 312; Bispham’s Prin. of Eq. [4th ed.] 179; Laws of 1868, chap. 803; Laws of 1813, chap. 60; Goddard v. Pomeroy, 36 Barb. 546; Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 id. 73; Hornbeck v. Sleight, 12 id. 198; Betts v. Betts, 4 Abb. [N. C.] 317-412; White v. Howard, 52 Barb. 294; Ringrose v. Beamham, 2 Cox, 384; Williams v. Gillies, 75 N. Y. 197; Collumb v. Read, 24 id. 505; Marvin v. Marvin, 53 id. 607; Church of Redemption v. Grace Church, 68 id. 577; Robbins v. Robbins, 89 id. 256; Ryan v. Dox, 34 id. 307; Marie v. Garrison, 13 Abb. [N. C.] 328; Tarbel v. Bradley, 7 id. 273; 86 N. Y. 280; Roulston v. Roulston, 64 id. 652; Austice v. Brown, 9 Paige, 448; Safford v. Hyndes, 39 Barb. 625; Reitz v. Reitz, 80 N. Y. 538; B., N. Y. & E. R. R. Co. v. Lampson, 47 Barb. 533; Joy v. Barrel, 16 Mass. 223; Fisher v. Fields, 10 Johns. Ch. 505; Gormez v. T. Bank, 4 Sanf. 106; Corser v. Leggett, 25 Barb. 391-394; 1 Perry on Trusts, 81-84; Chapman v. Porter, 69 N. Y. 276; Neilly v. Neilly, 23 Hun, 651; Day v. Roth, 18 N. Y. 448; Kennedy v. Porter, 109 id. 547.) Mr. Burt is entitled to an equal share of all the property of the community, whether the association be an ordinary partnership or a universal partnership. (Grosvernor Case, 188 Mass. 46; White Case, 4 Greenl. 281; Goesele Case, 14 How. [U. S.] 176; Gaseley Case, 13 Ohio St. 410; Schriber Case, 5 Watts. 226; Nachtrieb Case, 3 Wall. 78; Lenox Case, 3 id. 137; Uhlman v. N. Y. L. Ins. Co., 109 N. Y. 421; Ratzer v. Ratzer, 1 Sten. 137; Goesele v. Bimeler, 14 How. [U. S. ] 248; U. S. Bank v. Binney, 5 Mason, 183; 1 Lind. on Part. [4th ed.] 55; Collyer oil Part. § 28.) The conveyance of all the property of members of the community by the property holders to any person except to a fellow member was illegal. If the property holders were authorized to convey it to the corporation, the corporation is not capable of legally holding and using it for the purposes of the Oneida Community. (Laws of 1874, chap. 324; Laws of 1887, chap. 546; N. Y. & S. C. Co. v. Fulton Bank, 7 Wend. 412; People v. B., H. T., etc., R. R. Co., 12 Abb. [N. C.] 230; People v. N. R. S. R. Co., 21 id. 164, 196; 16 Civ. Pro. Rep. 36; Hitchcock v. Galveston, 95 U. S. 341; Vidal v. Girard, 2 How. Pr. 788; White v. Howard, 46 N. Y. 299; Gerard on Titles, 264, 269; Holland v. Alcock, 108 N. Y. 312; Willard’s Eq. Juris. [Potter’s ed.] 569; Handley v. James, 5 Paige, 487; Wilder v. Ramsay, 95 N. Y. 7; Van Rensselaer v. Akin, 22 Wend. 549; Newton v. Bronson, 13 N. Y. 587; Hertwell v. Bogert, 3 Ed. Ch. 20; Thorn v. Kramer, 15 Barb. 112, 116; Ridgley v. Johnson, 11 id. 327; Grimmel v. Buchanan, 1 Daly, 538, 546; Lewis v. Ingersoll, 1 Keyes, 347, 356; Jackson v. Hartwell, 7 Johns. 420; Bryce v. St. Louis, 18 How. Pr. 131; People v. U. Ins. Co., 15 Johns. 350; N. Y. F. Ins. Co. v. Ely, 2 Cow. 678; Darmouth College v. Woodworth, 4 Wheat. 518; Halstead v. Mayor, etc., 3 N. Y. 433; Austin v. Searing, 16 id. 112; Lloyd v. Loring, 6 Vesey, 733; Black Assn. v. Munday, 21 Abb. [N. C.] 99; McGlynn v. Post, 21 id. 97.) The conveyance of the property to the corporation is fraudulent. (Goesele v. Bimeler, 14 How. [U. S.] 238; Gass v. Whilhite, 2 Dana, 170; McCanghal v. Ryan, 27 Barb. 376; Blissert v. Daniel, 10 Hare, 493; Wood v. Wood, L. R. [9 Ex.] 190; Patterson v. Silliman, 28 Penn. St. 304; Lindly on Part. 744, 446; Faithorne v. Weston, 31 Hare, 387; Barton's Case, 4 DeG. & J. 46.) A court of equity has jurisdiction and power to afford all relief consistent with the facts in the case. The complaint invokes relief of an equitable nature only, and the full relief that the court has prerogative to dispense. (White v. Brownell, 4 Abb. Pr. [U. S.] 162, 191; Collyer on Part. § 53; Beaamont v. Meredith, 3 V. & B. 180; Richardson v. Hastings, 20 Eng. Ch. 323; Bury v. Cross, 3 Sandf. 1; Gorman v. Russell, 14 Cal. 531; Bailey v. Burton, 8 Wend. 339; Brown v. McDonald, 1 Hill, 302; Linegan v. Henderson, 1 Bland, 251; Smith v. Smith, 4 And. 495.)</p> <p>The only contract with the plaintiff is the one contained in the covenants of 1864 and 1875. Those contracts are lawful, and contained the terms of the agreement under which the association was organized and carried on. If they do not furnish a basis for this action then there is none. (Waite v. Merrill, 4 Me. 102.) By the terms of the agreements of 1864 and 1875, the plaintiff acquired no divisible interest in the property of the Oneida Oomnmnity, but only a right to its use while he remained a member. (Gasely v. Separists, 13 Ohio St. 144; Goesele v. Bimeler, 14 How. [U. S.] 589; Waite v. Merrill, 4 Me. 102; Schreiber v. Rapy, 5 Watts, 351; Potter v. Chapin, 6 Paige, 639, 650; Boone on Corp. § 322; McMahon v. Rauher, 46 N. Y. 67; Leech v. Harris, 2 Brewst. Pa. 571; Ebbenghousen v. W. Club, 4 Abb. [N. C.] 300; Hyde v. Woods, 2 Saw. 655, 659; 94 U. S. 523; Belton v. Hatch, 109 N. Y. 593; Ash v. Giue, 97 Penn. St. 493; Lafond v. Deems, 81 N. Y. 507; Loubat v. LeRoy, 15 Abb. [N. C.] 44; Caldicott v. Griffith, 8 Exq. 898.) The plaintiff withdrew from the community without cause while it was a living organization, and Ms rights were by that act extinguished. (Goesele v. Bimeler, 14 How. [U.S.] 589.) Burt was properly expelled for cause. (Otto v. J. Union, 75 Cal. 308.) The contract entered into between the plaintiff and the Erie Preserving Company, and his subsequent acts, constitute a bar to equitable relief. (Murray v. Beard, 102 N. Y. 508; N. Y. C. Ins. Co. v. Nat. Prot., 14 id. 85; Gazley v. Pine, 16 Johns. 267; Goesele v. Bimeler, 14 Hun, 589; News v. Yocum, 9 Sawy. 24.) The complaint was, in fact, dismissed “ upon the merits,” although the referee omitted the words “ upon the merits ” from his report. • (Van Derlip v. Keyser, 68 N. Y. 444; C. Bank v. Gospel Church, 127 id. 361; O'Rourke v. Hadcock, 114 id. 551, 555.) The transfers of property by the property holders to the Oneida Community (Limited) were not fraudulent or void. (Leggett v. Ladd, 17 Ore. 89; Fairchild v. Fairchild, 64 N. Y. 471; Macom v. Macom, 53 id. 607.) If the conveyance to the Oneida Community (Limited) was illegal or void, the plaintiff is not entitled to any relief in this action. (Holland v. Alcock, 103 N. Y. 323.) Ho trust existed in regard to the real estate, and the four held absolute title thereto. (Carr v. Carr, 52 H. Y. 251; Reitz v. Reitz, 80 id. 538; Levy v. Brush, 45 id. 589.)</p>

The nature of the action and facts, so far as material, are stated in the opinion. Mo civil action is maintainable against- the municipal corporation for a failure on the part of its trustees to exercise the power conferred upon it to make and open up for public travel new streets.

Under the act, chap. 378 of the Laws of 1870, in October, 1871, the board of managers of the Buffalo State Asylum for the Insane entered into a contract with Linus Jones Peck & Co. for furnishing stone for the contraction of the asylum; and in January, 1872, a further contract was made between the same parties for cutting the stone to be used for the same purpose.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 22, 1892, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>This was an action upon a promissory note made by defendant, J. Sawyer Hanna, payable in two months after date to the order of A. E. Hanna. It was indorsed by the payee and the defendants, Morris W. Hanna and W. Dwight Munger. Morris W. Hanna refused to submit any question to the jury and alone defended. The court directed a verdict for defendant to which plaintiff’s counsel excepted. A verdict was rendered in accordance with the direction.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in holding on the whole proof that sufficient diligence had not been shown by the plaintiff before mailing the notice of protest to Hanna at Canandaigua, and granting defendant’s motion for a non-suit. (Bank of Utica v. Philips, 3 Wend. 408; Requa v. Collins, 51 N. Y. 147; Baer v. Lippert, 12 Hun, 576; Libby v. Adams, 32 Barb. 542; Gantry v. Dane, 51 N. Y. 89; C. Bank v. State, 15 Wend. 364; Bank of Utica v. Bender, 21 id. 643; Ransome v. Mack, 2 Hill, 587; Beal v. Parrish, 20 id. 407.)</p> <p>There was no diligence shown in the protest of the note, and the indorser was discharged. (Story on Prom. Notes, § 135; Edw. on Bills, § 265; Lawrence v. Miller, 16 N. Y. 235; Anderson v. Drake, 14 Johns. 114; Ward v. Prince, 54 Barb. 89; Sewell v. Russell, 5 Wend. 276; Bartlett v. Robinson, 39 N. Y. 191.) There was no diligence exercised by either the maker or notary in the attempt to protest the note in question. (G. Bank v. De Groot, 7 Hun, 216; 1 Pars. on Bills, 495; Rawden v. Redfield, 2 Sandf. 178; Lawrence v. Miller, 16 N. Y. 235; Baer v. Leffert, 12 Hun, 516; Baest v. Winckle, 14 id. 188; Chitty on Bills, 489; Clift v. Rogers, 25 Hun, 39; Smith v. Miller, 52 N. Y. 548.) There was no question in the case for the jury, and the direction of the trial judge was correct. (Rich v. Jackway, 18 Barb. 357; Remer v. Downer, 23 Wend. 620; Bank of Utica v. Bender, 21 id. 642; Spear v. Bank, 3 Hill, 520.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made July 1, 1891, which reversed a judgment in favor of plaintiff entered upon the report of a referee, and ordered a new trial.</p> <p>This action was brought to recover damages for defendant’s alleged negligence in and about the collection of a draft sent to it by plaintiff.</p> <p>Dinehart being indebted to the firm of Crouse & Walrath in the sum of $800, for goods sold, the firm made a draft in the following form viz.:</p> <p>‘ Syracuse, FT. Y. Feb. 14, 1886.</p> <p>“At sight (protest waived) pay to order of Gr. H. Lanham, Esq., Cashier, four hundred dollars, value received.</p> <p>“ (Signed) CBOITSE & WALRATH.</p> <p>“ To Petes M. Dinehart, Esq.,</p> <p>“ Friend, FT. Y.”</p> <p>On the day of its date this draft was mailed to the defendant, a bank at Penn Yan, FT. Y., for collection. Dinehart lived in the country, at some distance from Penn Yan. Lapham, defendant’s cashier, testified that upon the receipt of the draft, on February fifteenth, he notified Dinehart by mail. On February twenty-first Dinehart came into the bank and, the draft being presented to him, he said he would pay it next week, and he accepted it across its face, making it payable at the defendant bank. On the same day Lapham wrote Crouse & Walrath, acknowledging their letter and the draft, and stating it was “ payable sometime next week. Says this is the best he can do.” Subsequently a clerk was sent by the firm to the bank, who inquired about the draft. He said he was told that “ it was all right,” but could not remember being told of Dinehart’s acceptance. Lapham, the cashier, however, testifies that he told him of the acceptance and of Dinehart’s promise to pay it the next week. On March sixth Dinehart made an assignment of his property for the benefit of his creditors. On March third Crouse & Walrath wrote to the bank and asked if Dinehart had made arrangements to pay his draft. On March sixth the bank answered, informing them of Dinehart’s assignment, and as to the assets and liabilities. On March seventh the draft was returned to the firm, and in September following the present action was commenced to recover damages, measured by the value of the draft, upon the ground of the bank’s negligence in the matter of its collection.</p> <p>The referee, before whom the trial of the action was had, reported in favor of the plaintiff; finding the defendant guilty of negligence in failing to present the draft for acceptance in due time, or to make proper efforts to collect it after acceptance ; and that, by reason of its negligence, the drawers were deprived of the opportunity to collect the draft before the drawee’s assignment. He found that the drawers had sustained damages to the amount of the draft, with interest, and directed judgment accordingly.</p> <p>Further facts are stated in the opinion.</p> <p>The order of reversal not stating that it was upon the facts, the only question that arises upon this appeal is whether the findings of the referee are wholly unsupported by the evidence. (Whitman v. Foley, 125 N. Y. 651, 658; Nichols v. Wentworth, 100 id. 455; Cudahy v. Rhinehart, 133 id. 248; R. R. Co. v. Roach, 97 id. 378; Shaw v. N. Y., L. E. & W. R. R. Co., 20 Wkly. Dig. 136; Smith v. Pettee, 70 N. Y. 13; Kane v. Cortesy, 100 id. 132; Bond v. Bond, 51 Hun, 507; Lewis v. Barton, 106 N. Y. 70; Crook v. Rindskopf, 105 id. 476.) A question of fact was presented as to when the notice was in fact sent, and if the defendant did nothing towards collecting the draft until the twentieth or twenty-first by sending a notice, the referee might properly find that the defendant had been guilty of negligence in the failure to notify Dinehart that they had a draft against him. (Byles on Bills, 182, 186; T. N. Bank v. Parker, 130 N. Y. 415; Ostrander v. Hart, 130 id. 406; Travis v. Travis, 122 id. 499; Ayrault v. P. Bank, 47 id. 570; Joy v. Diefendorf, 130 id. 6; 123 id. 191; Austin v. Holland, 69 id. 571, 576; G. S. Co. v. Otis, 100 id. 446; Rosenthal v. Walker, 111 U. S. 193; F. N. Bank v. F. N. Bank, 89 N. Y. 412.) The referee was warranted in finding that the defendant was guilty of negligence, and his findings are well supported by the evidence. (Daniels on Neg. Inst. §§ 323, 327, 341, 342; Edwards on Bills [3d ed.] §§ 561, 563, 637, 656, 658; Byles on Bills [6th ed.] 186, 281; Randolph on Com. Paper, § 568; Allen v. Suydam, 20 Wend. 321; Allen v. M. Bank, 22 id. 215; F. N. Bank v. F. F. Bank, 77 N. Y. 320; 89 id. 412; 24 Hun, 241; Ayrault v. P. Bank, 47 N. Y. 571; Walker v. Bank State N. Y., 9 id. 582; C. Bank v. A. Bank, 11 id. 203; M. Bank v. A. Bank, 7 id. 459; Shipsey v. B. Bank, 59 id. 485; Failing v. Fargo, 12 Wkly. Dig. 121; F. R. U. Bank v. Williard, 5 Metc. 216.) The measure of damages which the holder is entitled to recover of the collection agent is the actual loss which it has suffered, and which is prima facie the amount of the bill, with interest. (Daniels on Neg. Insts. § 329; Bank of New Haven v. Kenna, 76 N. C. 340.) The question as to whether the commencement of the replevin action by the plaintiffs after the assignment in any manner affected the plaintiff’s right to recover does not arise in this appeal, for the reason that the record does not present any finding or request to find on that subject, and no request to nonsuit or dismiss the complaint or exception to a refusal to do so appears on the record. (Dalle v. Rhinehart, 27 N. Y. S. R. 994; Pearse v. Pettis, 46 Barb. 276; Kinney v. Kernan, 47 N. Y. 164; Mills v. Parkhurst, 126 id. 89; C. E. Bank v. F. Bank, 118 id. 443; Morris v. Rexford, 18 id. 552; Wile v. Brownstein, 35 Hun, 68.)</p> <p>The defendant was not guilty of any negligence respecting the collection of the draft. It did all in its power, and what it did was done' with the full knowledge and ratification of its acts by the plaintiff. (Allen v. Suydam, 20 Wend. 321.) The plaintiffs have lost any remedy they may have had against the bank, by their conduct in disaffirming the sale and electing to take the goods delivered to the drawee, claiming the sale was void for fraud on his part in obtaining them. (Wallace v. O'Gorman, 6 N. Y. Supp. 890; Fowler v. B. S. Bank, 113 N. Y. 450; Conrow v. Little, 115 id. 387; Terry v. Munger, 49 Hun, 560; 30 N. Y. S. R. 746; 121 N. Y. 161; Roberts v. Ely, 9 N. Y. S. R. 796; 113 N. Y. 281; Muller v. Tuska, 87 id. 166; Bowen v. Mandeville, 97 id. 237; Riley v. A. S. Bank, 21 Wkly. Dig. 319; 103 N. Y. 669; Thompson v. Fuller, 41 N. Y. S. R. 224; Wile v. Brownstein, 35 Hun, 68.) The plaintiffs cannot recover in any event anything more than mere nominal damages. (Allen v. Suydam, 20 Wend. 321; Mott v. H. N. Bank, 23 Hun, 354; Myers v. M. L. Ins. Co., 32 id. 321; Van Wart v. Wooley, 3 B. & C. 439.)</p>

The nature of the action and the material facts are stated in the opinion. The first ground of the motion to dismiss the complaint, that there was a breach of warranty, and that the policy was, therefore, void, is untenable. (Van Schaick v. N. F. Ins. Co., 68 N. Y. 434; Woodruff v. I. Ins. Co., 83 id. 133; Short v. H. Ins. Co., 90 id. 16; Haight v. C. Ins. Co., 92 id. 51; Titus v. G. F. Ins. Co., 81 id. 410, 419; Benninghoff v. A. Ins.

Ullmann, deceased. The facts, so far as material, are stated in the opinion. The statute gives the surrogate the power to construe a will, whether of real or personal estate, in proceedings to fix the collateral inheritance tax, if it is necessary.

This proceeding was instituted by Rosalia Whitmore, the petitioner, to appraise the damages sustained by her in con-' sequence of an alleged change of grade of one of defendant’s streets.

This was an action to recover the value of certain goods shipped by plaintiffs for transportation from Hew York to Mobile. The facts, so far as material, are stated in the opinion. Ho liability whatever on the part of the defendants is shown.

Denton as surviving executor of Amos Denton, deceased. The questions at issue were dependent upon the construction to be given to the will of the decedent. The provisions thereof, so far as material, are as follows: “ First. I order my just debts and funeral and testamentary expenses paid out of my estate. “ Second.

denying a motion for a new trial. This action was brought by plaintiffs as assignees of an indemnity bond given by defendants to William W. Lawson, as sheriff of Erie county, by its terms indemnifying him against any judgment obtained against him for levying upon and selling property under execution against one Edson D. Shoemaker, issued upon a judgment recovered against him by the Third national Bank of Buffalo.

<p>Where a promissory note is made payable to the order of the maker and is indorsed by him, the indorsement does not change or affect the nature and character of his liability.</p> <p>A payment made to the holder of a promissory note by an indorser, not as agent for the maker, but simply in discharge of his obligation as indorser, where the note was executed by the maker for value, does not inure to the benefit of the latter, and in an action upon the note he is liable for the whole amount thereof, notwithstanding the payment.</p> <p>The payment can be considered such only as it relates to the indorser’s liability; so far as it relates to the maker’s liability, it is simply an equitable purchase pro tanto by the indorser.</p> <p>It seems the fact that another besides the holder of the note may be entitled to a portion of the avails of collection, does not affect the liability of the maker; judgment in favor of the holder is a bar to any other suit on the note, and payment to him of the full amount discharges it.</p> <p>It seems, also, the only right of the indorser, who has made such payment, is through the judgment or against the proceeds; if not content that the holder shall collect, to some extent, as his trustee, he may prevent it by payment in full to the holder, and so entitle himself to the possession of the note, or if judgment has been obtained thereon, to be subrogated to the plaintiff’s rights therein.</p> <p>It seems, also, that the rule above stated as to payment by an indorser, has no application to accommodation paper, but rests wholly upon the actual and ultimate indebtedness of the maker.</p>

This action was brought to enforce an alleged assignment of part of a claim set up by the defendant Michael Duffy .against the defendant The Tradesmen’s National Bank. The facts, so far as material, are stated in the opinion. No case can be found where a party is held to pay a second time money which he Fas paid to a plaintiff or claimant when the claim of the plaintiff is positively denied, and there is no proof whatever of its validity.

This action was brought to recover the value of a mare which was killed while in transit in one of defendant’s cars. ■ The facts, so far as material, are stated in the opinion. The release signed by Cooledge, does not relieve the defendant from liability for its negligence, and does not limit plaintiff’s recovery to the sum of $100.

<p>Appeal from judgment of the General Term of the Oourtof Common Pleas for the city and county of Hew York, entered upon an order made March 7, 1892, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>This was an action in equity.</p> <p>The facts as alleged in the complaint, and found at the Special Term, are substantially as follows: In June, 1887, the defendant Charles G. Dobbs, owned certain real estate in the city of Hew York, subject to three mortgages given to secure, in the aggregate, the sum of $39,000. In that month he conveyed the real estate to William H. Hiebuhr, subject to the three mortgages, for the consideration of $85,000, and took back a purchase money mortgage for the sum of $46,000. The deed was executed to Hiebuhr in pursuance of a building contract between him and Dobbs, by which Dobbs agreed to advance to him the sum of $45,000, in installments, to aid him in erecting buildings upon the real estate. In pursuance of that agreement, Hiebuhr executed to Dobbs a mortgage for the sum of $45,000, to secure the money thus to be advanced. Thereafter," in October, 1887, Hiebuhr conveyed, by deed, to Gilbert R. Hawes, an undivided one-fourth part of the real estate, subject to the mortgages, and that deed was delivered pursuant to an agreement anti understanding between him, Dobbs and Hiebuhr, whereby Dobbs undertook and agreed to protect and secure to Hawes and his assigns his interest in the real estate thus conveyed. On the 18th day of June, 1888, there was an agreement made between Hawes and Dobbs, by which Hawes was to aid in the completion of the buildings upon the real estate, and to aid Dobbs in making the loans of money under his building contract with Hiebuhr, by advancing, for the account of Dobbs, the sum of $5,500, to be used for that purpose. Dobbs agreed that Hiebuhr would, as security for the $5,500 so advanced, execute and deliver to Hawes, his bond and a mortgage upon the balance of the real estate owned by him; that he would protect Hawes, and be responsible to him for the payment of the sum so advanced, with interest; that he would protect the interest of Hawes in the real estate conveyed to him, and the mortgage so to be given, and that he would not allow or further any foreclosure sale of the real estate under any mortgage thereon then owned or controlled by him, or which thereafter might be owned or controlled by him, which would impair or bar the interests of Hawes either under the deed or mortgage, or divest his rights in the property. The $5,500 was advanced by Hawes, in pursuance of that understanding, and used by Dobbs and credited to him as advanced under the provisions of his building contract with Niebuhr. In pursuance of the agreement Dobbs procured Niebuhr to execute a mortgage for $5,500 to Hawes, as arranged. In November, 1887, Dobbs procured his mother to take an assignment of one of the mortgages which were liens upon the property at the time of his conveyance to Niebuhr, and she paid therefor with her own money the sum of $14,000. Subsequently, m March, 1888, Dobbs caused an action to be commenced for the foreclosure of that mortgage in the name of liis mother, the holder thereof, to which action all the persons interested in or having liens upon the real estate, including Hawes, were made defendants. Niebuhr appeared in the action and interposed a defense. The action proceeded to judgment of foreclosure and Niebuhr appealed from the judgment. During the pendency of the appeal Dobbs procured Niebuhr to convey his interest in the real estate to his wife for the sum of $7,000, paid by her, and thereupon Niebuhr discontinued the appeal. Thereafter, sale was made in pursuance of the foreclosure judgment and the real estate was bid off by Dobbs for his wife, and she paid the consideration money. Thereafter she assigned her bid to the defendant, Bergmann, and the referee, who made the sale, executed the deed of the real estate to him. In March, 1888, Gilbert R. Hawes conveyed all his interest in the premises, and assigned his bond and mortgage to the plaintiff, and also assigned to him all his interest under the alleged agreement with Dobbs for the protection of the deed and mortgage, as alleged in the complaint. The plaintiff, in his complaint, alleging these and other facts* prayed for relief that it be adjudged: (1) that the agreement between Hawes and Dobbs is binding on Bergmann; (2) that the deed from Niebuhr to the wife of Dobbs was solely for the benefit of Dobbs; (3) that the interest of Dobbs as mortgagee of the premises has merged in that of the owner of an undivided three-fourths of the premises; (4) that the liens of the deed and the mortgage of the plaintiff on the premises are superior in equity to the rights of any of the defendants, in the premises; (5) that the plaintiff is the owner of an undivided one-fourth part of the premises, and that he has a good and valid lien on a portion of the premises described, to-the extent of $5,500 and interest; (6) that the plaintiff be allowed the costs and disbursements of the action; (7) that he have such other or further order, judgment or decree as to the court may seem just and equitable. The Special Term* having found these facts, dismissed the complaint on the ground that the plaintiff was not entitled to any equitable relief.</p> <p>This was an action in equity of which the court below had jurisdiction. (Code Civ. Pro. § 416.) The defendants having failed to interpose* either by answer or demurrer, any objection to the exercise by the court of its equity jurisdiction, they were precluded from asking for a dismissal of the complaint on the ground that the plaintiff should have brought his action in law and not in equity. (Ostrander v. Weber, 114 N. Y. 95, 102; Town of Mentz v. Cook, 108 id. 507; Watts v. Adler, 130 id. 646; Hyatt v. Ingalls, 124 id. 105; Cass v. Cass, 16 N. Y. Supp. 229.) The judgment and sale in foreclosure constitute no bar to the rights of plaintiff by reason of the fraud and deceit practiced on plaintiff’s assignor. (Mandeville v. Reynolds, 68 N. Y. 328; Mead v. Burns, 32 id. 275; Smith v. Nelson, 62 id. 289; Barker v. Lewis, 67 id. 309; Pendleton v. Wood, 17 id. 72; Dobson v. Pearce, 16 id. 156.) The claim of the defendants that the agreement was not in writing is an additional reason why the action should be entertained as one in equity. (Robbins v. Robbins, 89 N. Y. 257; Phillips v. Thompson, 1 Johns. Ch. 143.) If the court could not grant -equitable relief it should have awarded legal relief in a personal judgment for damages, to be assessed by a jury or otherwise, and the court, • having once acquired jurisdiction and entertained the case, it was error to dismiss the complaint on the ground that plaintiff was not entitled to equitable relief. (Ostrander v. Weber, 114 N. Y. 102; Taylor v. Taylor, 13 id. 578; Rathbone v. Warren, 10 Johns. 595; Van Rensselaer v. Van Rensselaer, 113 N. Y. 213; Valentine v. Richards, 126 id. 277; Sternburger v. McGovern, 56 id. 21.)</p> <p>Plaintiff having failed to establish any right to equitable relief his action must wholly fail. (Bradley v. Aldrich, 10 N. Y. 504.) The plaintiff is not entitled to judgment that the lien of the plaintiff’s deed of a one-quarter interest and his mortgage of $5,500, were superior in equity to the rights of any of the defendants in the mortgaged premises. (Rector, etc., v. Mack, 93 N. Y. 188.) The exception to the denial of plaintiff’s motion to send the issues in the case to a jury is not well taken. (Code Civ. Pro. § 971; Paul v. Parshall, 14 Abb. [N. S.] 138; Seymour v. McKinstry, 13 Hun, 281; Coleman v. Dixon, 50 N. Y. 572; Wright v. Nostrand, 91 id. 31.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 19, 1892, 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> <p>The referee had no power to amend the complaint as he did upon the trial. (Code Civ. Pro. § 723; Verplank v. M. Ins. Co., 1 Ed. Ch. 52; Harris v. K. Ins. Co., 5 Wend. 654; Whitnmarsh v. Campbell, 2 Paige Ch. 67; Harris v. Tumbridge, 83 N. Y. 97; Reader v. Sayre, 70 id. 190; Button v. S. Line, 40 Hun, 424; Coddington v. Mott, 1 McC. 434; Bush v. Tilly, 49 Barb. 604; Ford v. Ford, 53 id. 528; Whitcomb v. Humgerford, 42 id. 185; Bulen v. Burdell, 11 Abb. Pr. 383; Platt v. Squire, 15 Cush. 557; Cocks v. Radford, 13 Abb. Pr. 210.) The plaintiff failed to make out any case under the original pleadings. (Burt v. Saxton, 1 Hun, 553; Mead v. De Golyar, 16 Wend. 632; Page v. Ott, 5 Den. 406; Clark v. Dales, 20 Barb. 42; Vanbuskirk v. Stowe, 42 id. 9; Homer v. I. Co., 67 N. Y. 478; Chemical v. Matthews, 76 id. 145; Avery v. Wilson, 81 id. 341; McCreary v. Day, 119 id. 1; Avery v. E. L. A. Co., 117 id. 451; Mead v. Ins. Co., 64 id. 453; Brice v. Ins. Co., 55 id. 240; Moran v. McLarty, 75 id. 25; Paine v. Jones, Id. 593; Ford v. Joyce, 78 id. 618; March y. McNair, 48 Hun, 117; Williams v. Thorp, 8 Cow. 202; Marion v. Richmond, 3 Den. 58.) No subsequent contract or modification of the July contract was made between the parties. (Bartlett v. Weyman, 14 Johns. 250; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562; Vanderbilt v. Schreyer, 91 id. 392; Alexander v. Cauldwell, 83 id. 485; W. R. R. Co. v. Bayne, 11 Hun, 166; 75 N. Y. 1; P. Bank v. S. A. R. C. Church, 109 id. 12; Titus v. C. & F. R. R. Co., 8 Vroom. 98; Stokes v. N. J. P. Co., 46 N. J. L. 237.) The plaintiff was in no position to enforce this contract, being himself in default. (M. Co. v. Naylor, 9 App. Cas. 434; Norrington v. Wright, 115 U. S. 210; Winchester v. Newton, 2 Allen, 495; Bogardus v. N. Y. L. Ins. Co., 101 N. Y. 335.) The action was prematurely brought. (Bogardus v. N. Y. L. Ins. Co., 101 N. Y. 335; Mersey Co. v. Naylor, 9 App. Cas. 439; Winchester v. Newton, 2 Allen, 492; Learned v. Tillotson, 97 N. Y. 12.) The proceedings before the arbitrator upon the arbitration were erroneously admitted in evidence. (Sheridan v. Smith, 3 Hill, 538; Seck v. Valentine, 94 N. Y. 569; Learned v. Tillotson, 97 id. 1; Talcott v. Harris, 93 id. 567.) Evidence was erroneously admitted as to negotiations and conversations between Hart and Scranton prior to the execution of the contract of July 1, 1890. (Mumford v. McPherson, 1 Johns. 444; Green v. Collins, 86 N. Y. 254; Eighmie v. Taylor, 98 id. 298; Corse v. Peck, 102 id. 513; Clark v. Post, 113 id. 17.) An offer to buy peace on the eve of a controversy, where the offer contains no admission of a fact, bnt is a naked proposition to pay in settlement of a disputed claim, cannot be introduced in evidence against the person making such an offer. (Green v. H. R. R. R. Co., 32 Barb. 34; Williams v. Thorp, 8 Cow. 202; Marvin v. Richmond, 3 Den. 58: Payne v. F. S. S. R. R. Co., 8 J. & S. 141.)</p> <p>None of the referee’s findings of fact are re viewable in this court. (Patterson v. Robinson, 116 N. Y. 193; Potter v. Carpenter, 71 id. 74; Stilwell v. M. L. Ins. Co., 72 id. 385, 388; Kearney v. Mayor, etc., 92 id. 617, 620; Rutherford v. Schattman, 119 id. 604, 605; Elwood v. W. U. T. Co., 45 id. 549; Kawanaugh v. Wilson, 70 id. 177; Sipple v. State, 99 id. 284, 289; C. N. Bank v. Diefendorf, 123 id. 191, 200.) Whether the effect of the decision of Mr. Bullitt was to terminate the agreement of July 1, 1890, and restore the parties at once to their original rights and liabilities under the contract of December 20, 1889, or to leave the agreement of July 1, 1890, in full force, merely determining in advance upon what basis final settlements should be made when that agreement should be finally terminated by full performance according to its terms, in either case, the defendant’s repudiation of that decision and refusal to perform any more of its obligations until the plaintiff’s assignor should consent to forego some of his legal rights, gave the plaintiff’s assignor an immediate right of action for the full value of the original or modified contract, as the case may be, the two values being, in this case and under the decision of Mr. Bullitt, identical. (Hochster v. De La Tour, 2 E. & B. 678; Howard v. Daly, 61 N. Y. 362, 374; Burtis v. Thompson, 42 id. 246, 250; Freer v. Denton, 61 id. 492, 496; Shaw v. R. L. Ins. Co., 69 id. 286, 292; Willis v. Simmonds, 8 Hun, 189, 202, 203, 204; Ferris v. Spooner, 102 N. Y. 10; Windmuller v. Pope, 107 id. 674; Lee v. Becker, 6 Abb. [N. S.] 392; Taylor v. Bradley, 39 N. Y. 129, 144; Graf v. Cunningham, 109 id. 369; Mat thews v. Matthews, 16 N. Y. Supp. 621; Canda v. Wick, 100 N. Y. 127.) The testimony showing that the words “ market price ” in that part of the agreement of July 1,1890, which states the question to be decided by Mr. Bullitt, were inserted by mistake of all the parties, for the words “ contract .price” was properly admitted under the pleadings as they stood before the amendment of the complaint, and in any event did not harm the defendant. (Code Civ. Pro. § 522; Dambman v. Schulting, 4 Hun, 50; Mandeville v. Reynolds, 5 id. 338; 68 N. Y. 528, 542; Verplanck v. Van Buren, 76 id. 247, 259; Keeler v. Keeler, 102 id. 30, 35, 36; Meyer v. Lathrop, 73 id. 315, 321, 322; Arthur v. H. F. Ins. Co., 78 id. 462, 466; Grattan v. M. L. Ins. Co., 80 id. 281, 294; M. L. Ins. Co. v. Mecker, 85 id. 614, 615; Argall v. Jacobs, 87 id. 110, 113, 114; 2 Pom. Eq. Juris. [2d ed.] §§ 858, 859, 862; 1 Greenl. on Ev. § 290; Ward v. Kilpatrick, 25 N. Y. 413; Thrasher v. Bentley, 1 Abb. [N. C.] 39, 46; 49 N. Y. 649; Romeyn v. Sickles, 108 id. 650, 653.) The testimony in question would have been properly admitted in support of the original complaint, even if the agreement of July 1,1890, had not been affirmatively pleaded but had been put in evidence under a denial. (Code Civ. Pro. § 500; McKyring v. Bull, 16 N. Y. 297, 299, 303; Weaver v. Barden, 49 id. 286, 297, 298; Milbank v. Jones, 127 id. 370, 376; Pom. on Rem. [2d ed.] §§ 666, 673; Wheeler v. Billings, 38 N. Y. 263, 264; Greenfield v. M. M. L. Ins. Co., 47 id. 430, 437; O'Brien v. McCann, 58 id. 373, 376; Marsh v. Dodge, 66 id. 533; Wallace v. Blake, 128 id. 676; Verplanck v. Van Buren, 76 id. 247; Mandeville v. Reynolds, 68 id. 528, 544; Meyer v. Lathrop, 73 id. 315, 322; Arthur v. H. F. Ins. Co., 78 id. 462, 467; Grathan v. M. L. Ins. Co., 80 id. 281, 294; Phillips v. Gorham, 17 id. 270; Davis v. Morris, 36 id. 589; Williams v. Slote, 70 id. 601; Benedict v. Benedict, 85 id. 625; Maher v. H. Ins. Co., 67 id. 283; Code Civ. Pro. § 522; Meyer v. Lathrop, 73 N. Y. 315, 322; Arthur v. H. F. Ins. Co., 78 id. 462, 467; Grattan v. M. L. Ins. Co., 80 id. 281, 294; Van Nest v. Talmage, 17 Abb. 99, 105, 106; Wigand v. Sichel, 3 Keyes, 120, 122; Williams v. Tilt, 36 N. Y. 319, 323; Claflen v. Taussig, 7 Hun, 223, 225; Cohen v. C. L. Ins. Co., 60 N. Y. 300, 304, 305; Willson v. Force, 6 Johns. 110; Hunter v. H. R. R. I. & M. 20 Barb. 493, 501; Blin v. Cottle, 32 id. 322, 323.) The admission of the testimony did not harm the defendant. (Ward v. Kilpatrick, 85 N. Y. 413; C. Bank of Brooklyn v. Dearborn, 20 id. 244, 246; Forrest v. Forrest, 25 id. 501, 510; People v. Gonzalez, 35 id. 49, 59, 60; Milliner v. Lucas, 3 Hun, 496, 498; Phelps v. People, 72 N. Y. 365, 373; Tenney v. Berger, 93 id. 524, 531; McGean v. M. R. Co., 117 id. 219, 224.) The evidence showing the proceedings had before Mr. Bullitt and showing his award thereupon as arbitrator under the agreement of July 1, 1890, was properly admitted under the pleadings as they stood before the amendment of the complaint. - (Briggs v. Waldron, 83 N. Y. 682; Brazill v. Isham, 12 id. 9; McKyning v. Bull, 16 id. 297; Young v. Rummell, 2 Hill, 478; Johnson v. White, 6 Hun, 587.) The complaint was properly amended at the trial so as to allege the agreement of July 1, 1890, the mistake therein, the correction thereof, the arbitration pursuant thereto and the repudiation of the award. (Bate v. Graham, 11 N. Y. 237, 242; Haddow v. Lundy, 59 id. 320, 328; Cohn v. Husson, 113 id. 662; Code Civ. Pro. § 723; Reeder v. Sayre, 70 N. Y. 180; Lattin v. McCarty, 41 id. 107; Maher v. H. Ins. Co., 67 id. 283; Barnes v. H. F. Ins. Co., 75 Iowa, 11; Esch v. H. Ins. Co., 78 id. 334; Chapin v. Dobson, Id. 74; Hunter v. H. R. I. & M. Co., 20 Barb. 493, 502; Avery v. N. Y. C. & H. R. R. R. Co., 108 N. Y. 142, 150; Wilcox v. Payne, 28 N. Y. S. R. 712; Fallon v. Lawler, 102 N. Y. 228; Hosley v. Black, 28 id. 438; Grattan v. M. L. Ins. Co., 80 id. 281.) The two causes of action for the price of the delivered iron and for damages for breach of the unexecuted part of the contract, although they might have been separately stated, were properly united in the same complaint;’ (Perry v. Dickerson, 85 N. Y. 345, 349, 350.) The sayings and doings of the defendant’s president subsequent to the agreement of July 1, 1890, were admissible as admissions on the part of defendant. (Cudd v. Jones, 63 Hun, 142.)</p>

This was an action upon a bond executed by defendant as surety for one Leonard Vogel. In September, 1884, these plaintiffs, signing themselves as agents, entered into a contract with the village of Brockport to erect a village building,'4 according to plans and specifications drawn and prepared by II. D. Gleason, architect, for the sum of $9,100. Thereafter, they sub-let the carpenter work upon the building to Leonard Vogel, for the sum of $4,400.

The nature of the action and the facts, so far as material, are stated in the opinion. The established rule in equity is that the Statute of Limitations applicable to the cause of action alleged in the bill of complaint may be pleaded to a bill of revivor, and must be applied by the court. (Coit v. Camphell, 32 N. Y. 509; Code Civ. Pro. § 757; Hovendeu v. Annesly, 2 Sch. & Lef. 632; Story’s Eq.

The facts, so far as material, are stated in the opinion. The denial of plaintiff’s motion for an allowance of counsel fees having proceeded upon the sole ground, as recited in the order, that the court did not possess the power to make such allowance, a question of law is presented which is reviewable here.

This action was brought by plaintiff as chairman of the purchasing committee of the Western Dressed Beef Company to recover the sum of $500, alleged to have been unlawfully retained by the defendants out of the moneys received by them under a contract negotiated by them as brokers employed by plaintiff to sell certain lands. The material facts are stated in the opinion.

This was an action for partition. Upon a motion to compel Michael J. and Daniel F. Mahony, purchasers at a sale ander the interlocutory judgment, to complete their purchase, the following facts appeared : Andrew Kirk died in 1857 leaving a will by which he gave his property to his wife for life and upon her death provided that two commissioners should be appointed by the surrogate who ■should divide the estate into as many equal shares as the testator had children, “ as.…

The defendant was brought to trial upon the following indictment: “The grand jury of the county of Niagara, by this indictment, accuses Charles H. Laurence of the 'crime of grand larceny in the first degree, committed as follows: “That said Charles H. Laurence, on or about the 10th day >of August, in the year of our Lord, one thousand eight hundred and ninety-one, at the city of Lockport, within the county of Niagara, with force and arms, with intent to deprive and defraud…

This was an action upon a bond, the conditions of which, and the facts, so far as material, are stated in the opinion. The referee erred in holding that the only admissible evidence of the non-colleetibihty of notes, accounts and claims, was a judgment perfected on each, and an execution issued thereon and returned unsatisfied. (Wallace v. Strauss, 113 N. Y. 204; People v. Lee, 104 id. 441; White v. Hoyt, 73 id. 511, 512; Belloni v. Freeborn, 63 id. 383; Code Civ.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 18, 1892, which affirmed a judgment in favor of defendant, entered upon an order of Special Term sustaining a demurrer to plaintiff’s complaint.</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made Much 15, 1892, which reversed a judgment in favor of plaintif entered upon a decision of the court on trial at" Special Terr and granted a new trial.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made January 11, 1892, which modified, and affirmed as modified, a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from an interlocutory judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 12, 1892, which affirmed an interlocutory judgment in favor of defendant, entered upon an order of Special Term overruling his demurrer to the complaint.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 30, 1891, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p>