Volume 139 — New York Reports

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 8, 1892, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>This action was brought to recover back a sum paid in satisfaction of an assessment for a local improvement.</p> <p>The material facts are stated in the opinion.</p> <p>The trial court erred in directing judgment for the defendants. (Redmond v. Mayor. etc., 125 N. Y. 632; Trimmer v. City of Rochester, 134 id. 76.) The case should have been submitted to the jury according to the plaintiffs request. (People v. Cook, 8 N. Y. 67 ; Besson v. Southard, 10 id. 236; Cagger v. Lansing, 64 id. 417; Dean v. M. E. R. Co., 119 id. 540 ; Bagley v. Bowe, 105 id. 171; Koehler v. Adler, 78 id. 287.) The facts constituting the illegality of the assessment were proven by testimony extrinsic of the record, and the testimony is conclusive that the plaintiff paid the assessment in ignorance of these facts. (Laws of 1873, chap. 335, § 91; In re Blodgett, 91 N. Y. 117; In re French, 93 id. 634; Law v. Merrils, 6 Wend. 268; Cook v. Barr, 44 N. Y. 156 ; Constant v. University, 111 id. 604; II. P. Co. v. Hunt, 9 N. Y. S. R. 31; Dwight v. G. L. Ins. Co., 103 N. Y. 341; Mc Vay v. Mills, 10 N. Y. S. R. 411; Theobald v. Hatfield, 13 id. 251; Le Boutillier v. Fiske, 47 Hun, 323.)</p> <p>The payment was voluntary and the money cannot be recovered. (Tripler's. Mayor, etc., 125 N. Y. 617; Phelps v. Mayor, etc., 112 id. 216; Van Kest v. Mayor, etc., 113 id. 625 ; Vaughn v. Port Chester, 115 id. 637; 135 id. 460; Pooley v. City of Buffalo, 122 id. 592; Little v. Bowers, 134 U. S. 547; N. Y. & II. R. R. Co. v. Marsh, 12 N. Y. 308 ; Sanford v. Mayor, etc., 33 Barb. 147; U. Bank v. Mayor, etc., 51 id. 139 ; Peysen v. Mayor, etc., 70 id. 497; Sexton v. Pepper, 28 Hun, 31 ; Lyon v. Richmond, 2 Johns. Ch. 51; Vanderbeck v. City of Rochester, 122 N. Y. 285; Lamborn v. County Comrs., 97 U. S. 181; U. P. R. Co. v. Dodge County, 98 id. 541; O. S. N. Co. v. Tappan, 16 Blatchf. 296 ; Little v. Bowers, 134 U. S. 547; U. Ins. Co. v. City of Allegheny, 101 Penn. 8t. 250.) The doctrine that an assessment is in substance a judgment, and, if paid, the payment is involuntary, does not apply in the city of Hew York. An assessment there is not a judgment, but is merely a claim that cannot be collected without obtaining an actual judgment of the court. (Laws of 1882, chap. 410, §§ 852, 915-954; Scott v. Onderdonk, 14 N. Y. 9.)</p>

This action was brought to recover damages for injuries to plaintiff’s premises in the city of Brooklyn, caused by the explosion of a rocket. One Amatrano obtained a permit from the mayor’s office, Brooklyn, for the discharge of fireworks at the corner of Montague and Clinton streets, adjacent to the Academy of Music in that city, which permit recited that it was granted under chap. 3, art. 3, sec. 2 of the city ordinances.

The relator owns certain premises in the city of New York, which were leased by the East River Electric Light Company, now known as the Thompson-Houston Electric Company of New York. An action was brought by said company to obtain an apportionment of rent and to recover certain counterclaims for alleged breach of covenants in the lease.

This was an action by the abutting owners of certain property on Chatham square, in the city of New York, to restrain the operation and maintenance, by defendants, of their road in front of said premises and for damages. The facts, so far as material, are stated in the opinion.

These are appeals from convictions of the above defendants, affirmed by the general term of the supreme court in the first department. Each defendant was convicted upon a separate indictment and trial of a violation of what is described in the various records as the “Bottling Act,” and known as chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888. The first three section® of the act are here alone material.

Aureal from order of the (ieneral Term of the Supreme 'Court in the first judicial department, made November 29, 1892, which affirmed an order of the surrogate of the city and ■county of New York directing the appellant, as executrix of John Callahan, deceased, to make and file an account, and dismissed an appeal from a subsequent, decision of said surrogate, directing that, said executrix must file an account or a warrant of attachment should issue.

, which affirmed an order of Special Term dismissing a writ, of certiorari. The nature of the proceeding and the facts, so far as material, are stated in the opinion. The papers upon which . the writ was granted can be considered as establishing as facts ■such matters as are admitted, of as to which the return is silent.

<p>A foreign manufacturing corporation, whose business is conducted in another state, where all parties interested in it and its officers reside, and all its contracts made, its products manufactured, sold and delivered, and which transacts none of its corporate, business in this state, hut has an office herein in charge of a salaried agent, maintained simply as a convenient meeting place for its patrons for the discussion of questions preliminary to the making of contracts, the contracts themselves being in every case executed at the home office, and the rent of the. office and the, salary of its agent paid hv checks drawn on a bank in another state and paid there, cannot, for the purposes of taxation, be regarded as employing any of its capital in this state, and so is not taxable under the provisions of the act providing for the. taxation of certain corporal ions. (Chap. 543, Laws of 1880, as amended by chap. 36, Laws of 1881; cliap. 501, Laws of 1888; chap. 463, Laws of 1889.)</p> <p>Upon appeal from an order dismissing a writ of certiorari to review the action of the comptroller, in imposing upon a foreign corporation a tax upon capital “employed within ibis state,” the comptroller objected for the first time, that the application was not made- within thirty days after service upon the relator of the notice of the settlement of tin-taxes as required by the act (§ IT, chap. 501, Laws of 1885). Held, that such objection to be available should have been made in the court below, and not having been so made, could not be considered here.</p> <p>It appeared that on the application for a review of the taxes, the relator did not produce its witnesses for examination before the comptroller, hut furnished affidavits which were received without objection on tin-part of the comptroller, and were, considered by him as evidence. Held, that the objection could not he raised on appeal that such evidence was not competent within the provisions of the statute (§ 20, cliap. 463, Laws of 1889); that while the comptroller might have required the witnesses to he examined orally before him, it was for him to determine how tin-evidence should he produced, and lie could receive and treat the affida vits as competent evidence.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment of court of oyer and terminer 'entered on verdict finding defendant guilty of manslaughter in the first degree.</p>

The defendant was indicted, tried and'convicted in the Cayuga, 'county oyer and terminer for the crime of kidnapping. He appealed to the general term-of the supreme court, where the conviction was reversed, and he was discharged. The People then, appealed to this court. The facts appear sufficiently in the-opinion.

<p>A person owning a tract of land and selling a portion thereof may, for the benefit of his remaining land, impose any restrictions not against public policy he sees fit upon the land granted, and a court of equity will, as a general rule, enforce them.</p> <p>The owner of certain adjoining lots in New York city sold a number of them, she and the purchasers entering into an agreement “for themselves, their representatives, heirs and assigns,” containing mutual covenants, among others, that no trade or business shall be “carried on upon said lots which shall be injurious or offensive to the neighboring inhabitants, it being expressly agreed that this covenant runs with the land and is binding on all future owners thereof.” In an action brought by plaintiff, the owner of one of the lots so sold, which she occupied as her residence, against the owner of another of said lots and his tenant, to restrain an alleged violation of said agreement, it appeared that the tenant, a corporation whose business was that of undertakers, fitted up and was using the building upon the demised premises, winch previously had been occupied as a dwelling house, for the purposes of its business, a part of which was the reception of dead human bodies, their preparation for burial, etc., and also fitted up the front basement “for the special purpose of holding autopsies upon and for the dissection and other post-mortem examination of dead human bodies; ” that for the purpose of preventing the escape into other parts of said building “of the foul and noxious odors which usually escape” from the bodies during such examinations, the company bad opened ventilating holes from the dissection room into chimney flues. Held, that this constituted a violation of the agreement, and plaintiff was entitled to an injunction restraining the use of defendant’s premises for the purpose of post-mortem examinations and dissecting or storing dead bodies, or for funerals; that the covenant was not limited to such kinds of business as are nuisances per se, nor on the other hand did it prohibit a business simply because it might be offensive to a peculiarly sensitive person, but that the intent was to prohibit a business which would be offensive to persons generally ; that the business of the company was offensive within the agreement, as thus construed, and that the court could take judicial notice of its character in this respect; that the ventilation of the dissecting room in the manner stated, did not relieve the business of its offensive character.</p> <p>It was claimed that the covenant should not be enforced, because most of the lots in the block were no longer used as residences. Held, untenable ; that plaintiff had the right to still occupy her lot as a residence, and in such occupation to have the protection of the covenant.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court decided to submit-the question to the jury whether or not the contract in suit was not void by reason of the intent with which the parties had entered into it. This proceeding was an error in law which entitles this plaintiff to a new trial. (Dwight v. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. A person, whether attorney, agent or other person, standing in a fiduciary relation, cannot purchase a judgment or anything else as to which he has gained information in connection with his client’s business, against such client or former client or person to whom he has stood in a fiduciary relation, and be allowed to profit by it.

The nature of the action and the facts, so far as material, are stated in the opinion. 'The plaintiff failed to .show title to any such interest in real estate as entitled him to •maintain ejectment. (Laws of 1890, chap. 411; Wiseman v. Inoksinger, 84 N. Y. 31; Crossdale v. Lanigan, 129 id. 604; H. S. T. F. Co. v. Grant, 114 id. 40 ; Gaboon v. Bayard, 123 id. 298 ; 2hmford v. Whitney, 15 Wend. 380; Silshy x. Trotter, 29 N. J. Eq. 228; Plerreywnt v. Barnard, 6 NT.

The nature of the action and the facts, so far as material, are stated in the opinion. The action of the assessors was invalid because they did not apply the principle or proceed in the manner prescribed by statute, in relation to the assessment and collection of taxes.

The facts, so far as material, are stated in the opinion. There is no force in the technical objection that Judge Ingraham had lost jurisdiction because, when the matter was first entertained, he was a judge of the Superior Court, but before he had decided it he had resigned as Superior Court judge, and became a Supreme Court judge by designation from the governor to fill a vacancy. (Code Civ.

This was an action to recover damages for the negligent and fraudulent acts of defendant’s officers in issuing a certificate for certain shares of its stock. The facts, so far as material, are stated in the opinion. Defendant is liable to plaintiff for the acts of Allen, its president.

The nature of the action and the facts, so far as material, are stated in the opinion. Every doubtful fact is to be found in favor of plaintiff. (Colegrave v. N. Y. R. R. Co., 20 N. Y. 492; Pratt v. D. H. M. Ins.

The complaint is as follows: The plaintiff, suing in his own behalf, as well as in behalf of all other holders and owners of income mortgage bonds issued by the defendant, the New York and Greenwood… Held: and ever since said agreement have been owned and held, by or for the Erie Railroad Company, and by said defendant Hewitt, or the firm of Cooper & Hewitt, of which he is a member.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 22,1892, wliieh directed judgment in favor of defendant upon a case submitted under the Code of Oivil Procedure (§ 1279).</p> <p>The facts agreed upon, so far as material, are stated in the opinion.</p> <p>The defendant was organized under the provisions of chapter 54(1, Laws of 1887, entitled “An act to provide for the organization of trust companies, for their supervision, and for the administration of their affairs,” and is not authorized to transact the business referred to. (Pratt v. Short, 79 N. Y. 437 ; N. Y., L. & T. Co. v. Helmer, 77 id. 64; Huntington v. Savings Bank, 96 U. S. 388; Laws of 1887, chap. 546, § 1 ; R. S. Bank v. Kray, 102 N. Y. 331; N. Bank v. Jones, 95 id. 115 ; Hun v. Carey, 82 id. 65; U. S. T. Co. v. Brady, 20 Barb. 119; M. Bank. v. New York, 121 U. S. 138; Leavitt v. Blatchford, 17 N. Y. 521; Peoples. U. Ins. Co., 15 Johns. 358; Ohio v. G. A. Society, 11 Ohio St. 1; State v. W. S. L. Co., Id. 96.) The defendant lias violated section 283 of the Banking Law. (Laws of 1882, chap. 409, § 283; M. N. Bank v. Hall, 83 N. Y. 338 ; Const. N. Y. art. 8, § 4; Laws of 1890, chap. 563, § 2.)</p> <p>The Binghamton Trust Company under no circumstances and in no place advertises itself as a bank, much less as a savings bank; it everywhere denominates itself as a trust company, and in its circulars sets forth particularly the manner in which it differs from a savings bank, and has not violated section 283 of the Banking Act. (Curtis v. Leavitt, 15 N. Y. 1 ; People v. Doty, 80 id. 325 ; Perkins v. Smith, 116 id. 441.) Defendant does not exercise a privilege and franchise not conferred upon it by law. (Code Civ. Pro. § 1281; C. S. Co. v. Voorhis, 104 N. Y. 525 ; Pratt v. Short, 79 id. 445; Curtis v. Leavitt, 15 id. 66; Laws of 1890, chap. 563; Laws of 1887, chap. 546, ^ 21; Chapma/n, v. White, 6 N. Y. 412.)</p>

This action was brought to foreclose a mechanic’s lien. The facts, so far as material, are stated in the opinion. The plaintiff Spruclc failed to make such inquiry as a prudent man would have made respecting the title of the defendants Tartter to, and their right to erect a building on the land in question.

This appeal was argued and decided hy this court without opinion March 14, 1893 (137 X. Y. 609), and on April 18, 1893, a reargument was ordered (138 X. Y. 614). Appeal also from order of same General Term, made the first Monday of January, 1893, which' affirmed an order of Special Term denying a motion by defendants for a retaxation of costs under the order affirming the order of reference.

This action was brought for the construction of the will of Aimer Mellen, deceased, and for other relief. Tiie plaintiff is the widow of Abner Mellen, Jr., deceased, who died on the <>th day of March, 1890. Abner Mellen, Jr., was the son of A bner Mellen, who died on the 27th day of May, 1887, leaving him surviving his widow, Helen L. Mellen, one son, Abner Mellen, Jr., and two daughters, and Abner M. Wilcox, son of a deceased daughter.

This action was brought for the purpose of obtaining a partition of two lots in West Tliirty-eiglith street in the city of Hew York, which formerly belonged to one Maria Anna Lehritter, who died in Germany, January 29, 1890.

This action was brought to compel defendant to surrender a certificate of stock issued by plaintiff. It appeared that on August 21, 1889, plaintiff, having entered into a construction contract with George F. Work, Louis E. Pfeiffer and John J. MacFarlane, issued to its president the certificate in suit, which it was agreed should be deposited with defendant, plaintiff’s treasurer, until said construction contract was fulfilled. The work was never commenced by the contractors.

This proceeding was instituted by writ of certiorari, brought for the purpose of reviewing the decision of Edward Wemple, late comptroller of the state of Hew York, made December 30, 1891, canceling three several tax sales made by the state in the years 1877, 1881 and 1885, , of lands in the town of Long Lake, Hamilton county, for taxes. The sale of 1877 was for taxes assessed in the years 1867 to 1870 inclusive.

¡Appeal from the affirmance by the general term, fifth department, of judgment of conviction in the Niagara county sessions, on indictment for conspiracy.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 31,1891, 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 upon a bond, of which the following is a copy:</p> <p>“Know all men by these presents: That we John H. Draper and George T. Kellock composing the firm of John H. Draper & Company of the City of New York, as principals, and Frances S. Draper of the same place, widow as surety, are held and firmly bound unto H. C. Bennett & Company in the sum of forty thousand dollars lawful money of the United States of America to be paid to the said H. C. Bennett & Company their successors or assigns; for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seal and dated the 15th and 28th days of January, in the year one thousand eight hundred and eighty-one.</p> <p>“ Whereas, the said John H. Draper & Co. have borrowed and expect, from time to time, to borrow divers sums of money from the said H. C. Bennett & Co., and are desirous of giving to H. C. Bennett & Co., a continuing security for any money that the said firm of John H. Draper & Co. now owes or shall at any time owe said H. C. Bennett & Co., their successors and assigns, not exceeding the sum of twenty thousand dollars at any one time, and said H. C. Bennett & Co., having required said firm of John H. Draper & Co., to furnish such security —</p> <p>“Now the condition of this obligation is such that if the above bounden obligors, their heirs, administrators or executors shall well and truly pay or cause to be paid to the above-named obligees, their successors or assigns all sums and every sum of money not however exceeding in the aggregate the sum of twenty thousand dollars, which shall at any time be due or owing from the said John H. Draper & Co., to the said obligees for or on account of any loans or advances made or any credit granted by the said obligees, their successors or assigns, to the said John H. Draper & Co., then the above obligation to be void, otherwise to remain in full force and virtue.</p> <p>“ It being expressly understood that this obligation is a continuing security for the sum of twenty thousand dollars, but that nothing herein contained shall be so construed as to require said obligees, their successors or assigns to allow the indebtedness of John H. Draper & Oo. to reach said sum of twenty thousand dollars or to require said obligees, their successors or assigns to loan or' advance to said firm any sum whatever or to grant them any credit or accommodation whatever.</p> <p>“JOHN H. DRAPER, [l. s.] “FRANGES S. DRAPER, [l. s.]</p> <p>“ GEORGE T. KELLOCK. [l. s.] ”</p> <p>The further material facts are stated in the opinion.</p> <p>A reading of the bond clearly shows that it was the intention of the parties to make it a continuing security unto H. C. Bennett & Co.,. their successors and assigns, for any advances which they might make to said firm of John H. Draper & Co. (Addison on Cont. 655; Strange v. Lee, 3 East, 489 ; Metcalf v. Brinn, 12 id. 400 ; Schmitz v. Langhall,,88 N. Y. 503.) Instruments the nature of the one hére in suit, should receive not only a liberal construction, but one favorable to the parties relying upon it, in their transactions with the principals. (Gates v. McKee, 13 N. Y. 232; Mason v. Prichard, 12 East, 227; Drummond v. Preston, 12 Wheat. 515; Douglass v. Reynolds, 7 Pet. 113; White's Bank v. Myles, 73 N. Y. 335; Belloni v. Freeborn, 63 id. 383 ; Rindge v. Judson, 24 id. 264.) The- plaintiffs, upon a trial under the complaint, might have been allowed to show by parol proof that the bond was intended to cover any advances made by the successors of the firm of H. C. Bennett & Co., as well as the then existing firm. (Beakes v. DaCunha, 126 N. Y. 293.)</p> <p>The contract was not made with plaintiffs; plaintiffs’ firm, indeed, was not then in existence. The contract was made with a firm which has ceased to exist. To this plaintiffs say, that, on the dissolution of the old firm, the right to this instrument was assigned to them. JSTo such thing is known to the law. (Barlow v. Myers, 64 N. Y. 45 ; Watson v. McLaren, 26 Wend. 430 ; Smith v. Starr, 4 Hun, 124 ; Barnes v. Barrow, 61 N. Y. 39; Turk v. Ridge, 41 id. 206.) Plaintiffs’ entire case rests upon an erroneous interpretation of the phrase “ successors and assigns,” found in several places in the instrument in question. (Lawrence v. Fox, 20 N. Y. 288; Vrooman v. Turner, 69 id. 282; Turk v. Ridge, 41 id. 206; Chamberlain v. Parker, 45 id. 571; Burr v. A. S., etc., Co., 81 id. 178; N. M., etc., Assn. v. Conkling, 90 id. 119; People v. Pennock, 60 id. 426; Dance v. Girdler, 4 B. & P. 34; Ward v. Stahl, 81 N. Y. 408.)</p>

This action was brought to recover commissions claimed to be due plaintiff as broker upon a sale of land. The facts, so far as material, are stated in the opinion. No sale was effected, and, therefore, the plaintiff cannot recover. (Cornish v. Capron, 136 N. Y. 233; Goddard v. Foster, 17 Wall. 142; Stephen’s Dig. of Ev. 168, 169 ; Park v. M. A. & T. Co., 54 N. Y. 589; Hamilton v. L., L. & G. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order 'made July 2, 1892, which affirmed a judgment in favor of plaintiff entered u¡ion a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for injuries received by plaintiff by falling on a sidewalk in the city of Troy.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Tlie plaintiff was under obligation to show affirmatively that she did not, by any act or omission of her own, cause or contribute to the injury which she sustained. (Warner v. N. Y. C. R. R. Co., 44 N. Y. 465; Hart v. H. R. B. Co., 84 id. 56 ; Borden v. D., L. & W. R. R. Co., 131 id. 671 ; Kinney v. City of Troy, 108 id. 567.) It cannot be fairly claimed that the ice ivas the proximate cause of the jilaintiff’s fall. (Taylor v. City of Yonkers, 105 N. Y. 203 ; Johnson v. Vil. of Glens Falls, 41 N. Y. S. R. 820; Gillrie v. City of Lockport, 122 N. Y. 403.)</p> <p>The trial court ruled correctly in submitting to the jury the question of the defendant’s negligence. (Todd. v. City of Troy, 61 N. Y. 506 ; Gillrie v. City of Lockport, 122 id. 403.) The trial court ruled properly in denying the defendant’s motion for a nonsuit upon the ground that the plaintiff was not shown to be free from negligence, and in submitting to the jury the question as to whether or not there was contributory negligence upon her part. (McGuire v. Spence, 91 N. Y. 303.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 9, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Circuit without a jury.</p> <p>This was an action to recover rent claimed to be due under & lease.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The plaintiffs failed to prove their case. They should have proven, if they could, that Corbett had not accounted to them, or to the legal representatives of the deceased, for the rent received by him from defendant. (Turner v. Kowenhoven, 100 N. Y. 115.) Corbett’s agency was not immediately revoked by the death of Madden, and notice, either actual or constructive, should have been given defendant of Madden’s death. (Claflin v. Lenheim, 66 N. Y. 301; Williams v. Birbeck, Hoff. Ch. 359; M. Bank v. B. C. Co., 5 N. Y. Supp. 23; Blake v. Garwood, 42 N. J. Eq. 276; Whart. on Agency, §§ 90-104; Cassidy v. McKenzie, 4 W. & S. 282; Wilson v. Steward, 5 Penn. L. J. 450; Carragher v. Whittington, 26 Mo. 204; Ish v. Crane, 8 Ohio St. 520 ; Knapp v. Alvord, 10 Paige, 205 ; Miller v. Ponder, 55 N. Y. 325 ; Houghtuling v. Marvin, 7 Barb. 412; Bank of New York v. Vanderhorst, 32 N. Y. 553 ; Weber v. Bridgman, 113 id. 606 ; Hess v. Rau, 95 id. 359 ; Hunt v. Rousmanier, 3 Wheat. 174; Tate v. Hilber, 2 Ves. 111; Grappel v. Hodges, 112 N. Y. 419.) Defendant had the right to assume that Corbett was a general agent and manager, with full and complete power and control over the property as if he were the principal himself. (Gilbert v. Dishon, 107 N. Y. 327.)</p>

This action was brought for the foreclosure of a mortgage. The facts, so far as material, are stated in the opinion. Even if Benner made false and fraudulent statements as to the price paid for the Brooklyn house, Yoran is not liable for them.

The nature of the action, and the facts, so far as material, are stated in the opinion. The case presented here is essentially different from that presented to the Court of Appeals on the first appeal, and the decision of that court proceeded on a principle which has no application to the facts as now presented.

fourth judicial department, entered upon an order made February 3,1891, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit and affirmed an order denying a motion for a new trial. This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant while in its employ. 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 note is a valid obligation of the Ridgewood Ice Company, and the appellants are not liable on it. It is not the note of the appellants.

<p>Where, in an action hy a bank upon a promissory note discounted hy it. signed in their individual names hy officers of a corporation, and which was given to the payee in payment of a debt of the corporation, it is sought to charge the plaintiff with knowledge that it was the promise of the corporation, not of its officers, it is essential to show that such knowledge was acquired hy an officer of the hank, not casually and through his individual relations to the other parties, hut in an official capacity, and because of a necessity to inquire and know the facts in behalf of the hank.</p> <p>The fact that a director of a corporation, the payee of the note, was also president of the bank, and that he received the note from the payee, to he offered to the hank for discount, is not sufficient; he is under no obligation in such case to state to the hoard of directors of the bank his opinion as to the liability of the parties appearing as makers upon the note.</p> <p>While, in such an action evidence to show what took place at the time the note was offered and received for discount may be proper, in order to prove knowledge by the bank of the facts, subsequent admissions and declarations by individual directors or other officers of the bank would be of no effect to bind it, and so evidence thereof is incompetent.</p> <p>Statements of an agent are inadmissible to affect his principal, unless in respect to a transaction in which he is authorized to appear for his principal, and he has no authority to bind his principal by statements as to bygone transactions, unless expressly authorized to make them. Reported below, 64 Hun, 175.</p>

This was an action by an abutting owner of property on Third avenue in the city of Yew York, to restrain the operation and maintenance, by defendants, of their road in front of said premises, and for damages. The facts, so far as pertinent to the question discussed, 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 house in question.

The nature of the action and the facts, so far as material,, are stated in the opinion. TJpon the facts found by the referee, the plaintiffs were entitled to recover on this note against both of the defendants as copartners, and his decision dismissing the complaint was erroneous. (Crocker. Colwell,, 46 N. Y. 212; N. Bank v. Thomas, 47 id. 15 ; O. Bank v. Hennessey, 48 id. 545 ; Williams v. Gillies, 75 id. 197, 203 ; Lindley on Part. 112, 180-191; Daniels on Neg.

The nature of the action and the allegations of the answer, so far as material, are stated in the opinion. The defendants allege that they should have been sued as sureties. Whether that be so in fact or not, they have not been sued as sureties, but as principals. But even if they had been sued as sureties they cannot interpose a counterclaim or defense existing in favor of their principal.

Stilwell, a devisee under the will of Elizabeth A. Stilwell, deceased. The facts, so far as material, are stated in the opinion. The General Term erred in holding that it was too late for appellant to question the power of the surrogate.

Appeals from, judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made Hay 9, 1892, which affirmed a judgment foreclosing certain mechanics’ liens entered upon the report of a referee. This action was brought for the foreclosure of two mechanics’ liens. The facts, so far as material, are stated in the opinion.

This action was brought by plaintiff as assignee of C. F. Lake, to recover damages sustained by reason of defective plans, specifications, drawings and statements made by defendants, a firm of architects. The allegations of the complaint and the facts, so far as material, are set forth in the opinion. Recovery can be had only for cause of action alleged.

<p>Appeal from judgment of the Cayuga oyer and terminer, convicting defendant of the crime of murder in the first degree.</p>

<p>In an action to restrain the use of a trade mark it is not necessary for plaintiff to show that any person has actually been deceived by defendant’s alleged imitation ; it is sufficient for him to show his proprietary right to the trade mark and that defendant is selling similar goods, in packages having upon them marks and characters bearing a resemblance sufficiently close to those adopted by plaintiff for his trade mark to deceive the public. It is the liability to injury which the remedy may be invoked to prevent.</p> <p>So, also, it is not necessary to show an intention on defendant’s part to infringe upon plaintiff’s trade mark; it is sufficient to show an actual infringement.</p> <p>In such an action it appeared that plaintiff, a manufacturer of matches, put up and sold its goods in boxes, each having a label attached thereto, which had been adopted by plaintiff in 1883 as a trade mark and used continuously since that time. Upon the label was printed or stamped in red colors the words “The Vulcan,” under this the words “Damp Proof,” and under this a globe, upon each side of which was the representation of medals that had been awarded the plaintiff. Beneath the globe were the words “Trade Mark” and “Paraffin Matches.” Defendants, in 1889, sold matches put up in boxes identical in size and general appearance with those of plaintiff, each bearing n label printed or stamped in red and with letters of the same size. Upon this label were the words “ The Vulture,” the picture of a vulture .and a/cte simile of the plaintiff’s medals. Also, aside from the name, the same words as those upon plaintiff’s label and arranged in the same way. Held, that defendant’s label was an imitation of plaintiff’s trade mark sufficiently close as to be liable to deceive; and that an injunction was properly awarded.</p>

This action was brought to recover damages for personal injuries received by plaintiff while in defendant’s employ. The facts, so far as material, are stated in the opinion. Defendant’s motion for a new trial on the ground that the verdict was against the weight of evidence should have been granted. (Code Civ. Pro. §§ 999, 1347; Voisin v. C. M. Ins. Co., 123 N. Y. 129.) The trial judge erred in denying the defendant’s motion for a nonsuit.

This action was brought to recover damages for an alleged breach of contract. The facts, so far as material, are stated in the opinion-. The contract plaintiff claimed to have made was a mere oral agreement to provide the defendant with furnished rooms at her boarding house. A contract of this kind is not a lease of lands or of any interest in lands, and does not create the relation of landlord and tenant.

Appeals from orders of the General Term of the Supreme Oourt in the first judicial department, made April 14,1892, each of which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court and granted a new trial. These were actions of ejectment. The facts, so far as material in each case, are stated in the opinion therein.

/Aj?peal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made February 8, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This action was brought to recover damages to goods while being transported by defendant from Havre to Hew York. The facts, so far as material, are stated in the opinion.

551). The facts, so far as material, are stated in the opinion. The act under which this proceeding was instituted is constitutional. (Const.

This action was brought to recover damages for breach of ;a covenant of quiet enjoyment in a lease of certain premises from defendant to plaintiff. The facts, so far as material, are stated in the opinion.

Supreme Court in the second judicial department, entered upon an order made July 22, 1892, which affirmed a judgment in favor of defendant entered upon a verdict and affirmed an order denying a motion for a new trial. The nature of the action and the facts, so far as material,, are stated in the opinion. Leaving out of consideration the question of adverse possession, the legal title to the premises in dispute was in the plaintiffs. (Brown v. Volkneing, 64 N. Y. 79; Pager.

<p>Appeal from order of the General Term of the Supreme-Court in the third judicial department, made at the Septemher term, 1893, which reversed an order of Special Term, directing a peremptory mandamus to issue to James H. Manning, mayor of the city of Albany, commanding him to publish, as required by law, the list of inspectors chosen by the board of election commissioners, created by the act of 1892 (Chap. 171).</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The writ of mandamus, having no office to perform, when there is no legal light that can be enforced or protected by it, an appeal from the order of General Term reversing the order of Special Term granting a mandamus brings up nothing for review, or upon which a judgment can be enforcible by execution, and, therefore, the appeal should be dismissed. (People ex rel. v. Phillips, 67 N. Y. 582; People ex rel. v. Walter, 68 id. 408 ; Merrill on Mandamus, §§ 75, 77, 78.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made the second Monday of December, 1892, which reversed an order of Special Term denying a motion for the appointment of a referee and granted said motion.</p> <p>This action was brought to recover damages for a breach of a contract, whereby defendant leased to plaintiffs all its franchises and rights to construct, maintain and operate a street railroad in the city of Brooklyn, and to obtain for them the franchises and consents necessary to enable them to construct and operate a cable road. The complaint alleged that, to enable plaintiffs to fulfill their contract, it was necessary to expend large sums of money in the purchase of real estate, machinei’y, cars, horses, hiring employees and other expenses of construction, and that by reason of defendant’s breach of contract and its failure to obtain the consents agreed upon the enterprise contemplated by the agreement became abortive to plaintiffs’ damage in the sum of $300,000.</p> <p>Assuming that this action is simply to recover the amount of moneys expended by the plaintiffs, it is not an action involving a long account, which warrants the court in ordering the compulsory reference of the same. (Thomas v. Read, 6 Wend. 503 ; Selsnier v. Redfield, 19 id. 22; Camp v. Ingersoll, 86 N. Y. 433; Untermyer v. Beinhauer, 105 id. 521; Randall v. Sherman, 131 id. 669.) Under the provision of the Code, even when a long account is involved, before a reference can be ordered, it must appear that there is no difficult question of law in the case. (Thayer v. McNaughton, 117 N. Y. 111; Magown v. Sinclair, 5 Daly, 63 ; Kain, v. Delano, 11 Abb. [N. S.] 29; Read v. Lozier, 31 Hun, 286.)</p> <p>This action is referable. ( Untermeyer v. Beinhauer, 105 N. Y. 521; Welsh v. Darragh, 52 id. 590; Camp v. Ingersoll, 86 id. 433; Deidrich v. Richley, 19 Wend. 108.) This is an action ex contractu, and if the amount expended, less the credits, is the proper measure" of the plaintiffs’ damages, the items of expenditure constitute an account within the meaning of the statute. (Chambers v. Appleton, 84 N. Y. 649 ; Place v. Cheesebrough, 63 id. 315.) The only principle upon which a reference can be refused in this case is that the plaintiffs are not entitled to recover in this action the amount of money expended in the construction and equipment of the railroad, but must be limited to the value of the contract, or that part of the contract of which they have been deprived. The value of the contract, if it had any value, is the true measure of the plaintiffs’ damages.. (Taylor v. Bradley, 39 N. Y. 129; Wakeman v. W. & W. M. Co., 101 id. 205 ; Driggs v. Dwight, 17 Wend. 71.) The plaintiffs’ complaint proceeds upon no well-recognized legal principle. It first counts upon the contract and avers a breach by the defendant, and then, instead of claiming as damages the value of the contract, or even the value of the road at the time of the breach, it claims the amount of money paid, laid out and expended by them in and about its construction. There is no authority for such a claim as.this. (Clark v. Mayor, etc., 4 N. Y. 343.)</p>

The facts, so far as material, are stated in the opinion. There was no special partnership existing between Henry G. Hewhall and Christopher A.. Wyatt so far as the rights of James It. Clark in this proceeding were concerned.

This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendants. The facts, so far as material, are stated in the opinion. Eo proof was given sufficient to establish a want of due care on the part of the defendants.

The averments of the complaint, so far as material, are stated in the opinion. A cestui que trust may require a trustee who has made away with the trust property to account. He may follow the trust fund into the hands of other persons or into other property in the hands of the trustee, or he may proceed against the trustee personally.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants are estopped from denying their ownership, and pretending ownership hi the state in order to defeat the taxes. (Trustees v. Smith, 118 N. Y. 634; 85 id. 611.) The exception to the finding of fact, that Hannette Johnson Harrison left no heirs, was well taken.

This was an action of ejectment. The facts, so far as material, are stated in the opinion. The apportionment of the tax for 1882 was unauthorized, and the subsequent proceedings in respect to that tax, resulting in the sale of the lot described in the complaint, at which the plaintiff became the purchaser, were for that reason illegal and void.

. Appeal from order of the General Term of the Supreme Court in the second judicial department, made July 28, 1893, which affirmed an order of Special Term denying a motion to charge Peter B. Hayt with the costs and disbursements of this action. On the 3d day of January, 1888, William I. Thorn, being indebted to Peter D. Hayt, for the purpose of securing the payment of the indebtedness, assigned to him a demand which he claimed to have against the defendant, Oliver T. Beard.

This action was brought October 1, 1891, to recover $4,811.46, with interest, claimed to be due from defendant for the storage of a quantity of poultry by F. 0. Linde & Go., the plaintiffs assignors. The defendant, by an amended answer, alleged that Linde & Go. entered into a contract with him to properly store the poultry, and that they failed to do so, to defendant’s loss of $19,546.09.

.of the General Term of the Court of Common Pleas for the city and county of New York, entered upon an order made November 1,1892, which affirmed a judgment in favor… Held: as a matter of law, to be sui juris under the authorities. Children of this age have been held, as a matter of law, to be non sici juris. (Ihl v. F. S. S. R. R. Co., 47 N. Y. 317; Moebus v. Hermann, 108 id. 349 ; Birkett v. K. I. Co., 110 id. 504.) The requests to charge made by the plaintiff were proper.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 31, 1892, 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 compel the removal of a structure erected by the city of Mew York on the west side of pier 12, East river. An injunction was also prayed for against the use of the pier for the purposes complained of.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The city owned no part of the pier. (Swinnerton v. C. Ins. Co., 37 N. Y. 174; People v. Snyder, 41 id. 397.) The legislature has not attempted to give this pier to the city. (People v. B. & O. R. R. Co., 50 Hun, 192, 193; Comrs. of Pilots v. E. R. Co., 5 Robt. 366, 381, 382; Penal Code, § 385; Davis v. Mayor, etc., 14 N. Y. 506, 524; Comrs. of Pilots v. Clark, 33 id. 266; Cohen v. Mayor, etc., 113 id. 532, 537; 1 Dill. Mun. Corp. [4th ed.] § 383; 2 id. § 657; People v. Thompson, 98 N. Y. 6; People v. Newton, 112 id. 396, 403; In re U. F. Co., 98 id. 139; Cushing v: City of Boston, 128 Mass. 330 ; Stormfeltz v. Turnpike Co., 13 Penn. St. 555 ; Milarkey v. Foster, 6 Oreg. 378 ; Wartman v. City of Philadelphia, 33 Penn. St. 202; St. John v. Mayor, etc., 3 Bosw. 483; Story v. N. Y. E. R. R. Co., 90 N. Y. 122 ; Laws of 1882, chap. 410, §§ 715, 724.) The statute is not to be construed as authorizing confiscation. (N. Y. & O. R. Co. v. Van Horn, 57 N. Y. 473 ; People v. O'Brien, 111 id. 59 ; Lahr v. M. E. R. Co., 104 id. 268 ; Drucker v. M. R. Co., 106 id. 157; Sperb v. M. E. R. Co., 137 id. 155 ; Moore v. N. Y. E. R. Co., 130 id. 523; Cogswell v. N. Y. & N. H. R. Co., 103 id. 10.) The legislature has no power to confiscate this pier. (1 Dill, on Mun. Corp. § 107; Langdon v. Mayor, etc., 93 N. Y. 129 ; Williams v. Mayor, etc., 105 id. 419.) The use of the west side of pier 12 for dumping purposes is prohibited. (Laws of 1882, chap. 410, §§ 786, 788.). The fact that the use of this pier for dumping purposes may be convenient to the city and may save its street cleaning department some expense is no justification for using this particular pier as a dumping ground. (Rex v. Ward, 4 Ad. & El. 460; Rex v. Tindall, 6 id. 143; Davis v. City of New York, 14 N. Y. 506; People v. Vanderbilt, 26 id. 287, 298 ; People v. Newton, 112 id. 396, 407; Comrs. of Pilots v. Clark, 33 id. 251; People v. Thompson, 98 id. 6 ; In re N. F. & N. R. Co., 108 id. 383.) The dumping board being a public nuisance, which lias not been expressly authorized by the legislature, the plaintiff is entitled to the relief asked for. (Roosevelt v. Draper, 23 N. Y. 318; Francis v. Schoellkopf, 53 id. 152, 154; Ayres v. Lawrence, 59 id. 192; Milhau v. Sharp, 27 id. 611; Campbell v. Seamam,, 63 id. 568; Knoxv. Mayor, etc., 55 Barb. 404; Corning v. Lowerre, 6 Johns. Ch. 439 ; People v. Vanderbilt, 26 N. Y. 287; Crooke v. Anderson, 23 Hun, 266 ; Negus v. City of Brooklyn, 10 Abb. [N. C.] 180, 183; Hodges v. City of Buffalo, 2 Den. 110; 14 N. Y. 506, 510.) But if the plaintiff did not make out a case for equitable relief, by removal or injunction, the court * none the less erred in dismissing the complaint. The plaintiff is entitled to have the action retained for such relief, legal or equitable, as the facts will warrant. (Rogers v. N. Y. & T. L. Co., 134 N. Y. 197, 219; Martha v. Curley, 90 id. 372, 377 ; Wetmore v. Porter, 92 id. 76; Williams v. Slote, 70 id. 601; Wright v. Wright, 54 id. 437; Phillips v. Gorham, 17 id. 270 ; Emery v. Pease, 20 id. 62.)</p> <p>The dumping board constructed on the westerly half of pier Ho. 12, East river, is a legal structure. (Laws of 1881, chap. 367, § 4; Laws of 1883, chap. 435 ; Laws of 1882, chap. 410, §§ 706, 728, 773 ; Spratt v. Huntington, 48 How. Pr. 101; Delafield v. Brady, 108 N. Y. 529 ; People ex rel. v. McCall, 94 id. 587; Weiler v. Newback, 47 Hun, 168; People v. O'Brien, 111 N. Y. 59.) Sections 706, 728 and 773 of the Hew York City Consolidation Act should be read and construed together. (Laws of 1889, chap. 509.) The easterly and westerly sides of pier 12, East river, have for more than thirty years been regarded as separate piers. (Laws of 1851, chap. 361; Laws of 1882, chap. 410, § 186.) This court should not order the dumping board to be removed or declare the use of it a nuisance. (12 How. Pr. 1; Laws of 1855, chap. 474, § 6 ; Donohue v. Mayor, etc., 3 Daly, 65; Seifert v. City of Brooklyn, 101 N. Y. 136; Paine v. Village of Delhi, 116 id. 224; Ratcliffe v. Mayor, etc., 4 id. 195; Bellinger v. N. Y. C. & H. R. R. R. Co., 23 id. 42; Moyer v. N. Y. C. & H. R. R. R. Co., 88 id. 351; Uline v. N. Y. C. & H. R. R. R. Co., 101 id. 98; T. Co. v. City of Chicago, 99 U. S. 635, 641; W. W. M. Co. v. Shanahan, 128 N. Y. 345; Benner v. A. D. Co., 134 id. 156 ; Henry v. Company, 8 W. & S. 85 ; M. Co. v. Coons, 6 id. 101; In re P. & D. Co., Id. 43 ; In re Furman Street, 17 Wend. 661; Kavanagh v. City of Brooklyn, 38 Barb. 232; Waddell v. Mayor, etc., 8 id.. 95; Davis v. Mayor, etc, 14 N. Y. 506 ; Cohen v. Mayor, etc., 113 id. 536 ; Urguhart v. City of Ogdensburgh, 91 id. 37; Mills v. City of Brooklyn, 32 id. 489 ; Wilson v. City of New York, 1 Den. 595; Bohan v. P. J. G. L. Co., 122 N. Y. 18; Conklin v. N. Y, O. & W. R. Co., 102 id. 105; Cooley on Const. Lim. [6th ed.] 666 ; Sprague v. City of Worcester, 13 Gray, 193 ; Brown v. C. R. R. Co., 12 N. Y. 486 ; Pumpelly v. G. B. Co., 13 Wall. 166-180 ; Eaton v. B. C. & M. R. R. Co., 51 N. H. 504; Hamilton v. V, etc., R. R. Co., 119 U. S. 280; Atwater v. Trustees, etc., 124 N. Y. 602; S. M. Co. v. State, 104 id. 562.) The statutory authority which justifies defendants in maintaining the dumping board, alleged by plaintiff to be a nuisance, is express, clear and unquestionably conferred and contemplated the doing of the very thing which, it is alleged, causes the injury to the plaintiff. (Bohan v. P. J. G. L. Co., 122 N. Y. 18; B. & P. R. R. Co. v. F. B.Church, 108 U. S. 317; Com. v. Kidder, 106 Mass. 188.) The legislature may authorize acts which would otherwise be a nuisance when they affect or relate to matters in which the public have an interest. (Jf.adcliffe v. Mayor, etc., 4 N. Y. 195 ; Bellinger v. N. Y. C. R. R. Co., 23 id. 42.) The words “free commerce” have no technical significance, and are meaningless, unless read in connection with the original sections of the Consolidation Act bearing upon the subject. (Laws of 1882, chap. 410, § 786.) It must have appeared that the injunction which plaintiff sought to obtain in this action was needed, among other things, to prevent serious danger to human life, or serious detriment to health, and as he failed to prove that it was imperatively necessary to prevent the consequences above described, he did not show such a case as entitled him, as matter of right, .to the relief which he demanded. (Health Dept. v. Purdon, 99 N. Y. 237.)</p>

The facts, so far as material, are stated in the opinion. The act is void for attempting to confer upon a local court non-local jurisdiction. (Const. N. Y. § 19 ; Geraty v. Reid, 78 N. Y. 64; Landers v. S. I. R. R. Co., 53 id. 450; Hoag v. Lamont, 60 id. 96; Wheelock v. Lee, 74 id. 495 ; People v. Porter, 90 id. 68 ; Code Civ. Pro. § 2869 ; People ex rel. v. Terry, 108 N. Y. 7 Lawton v. Steele, 129 id. 241; Wynhamer v. People, 13 id. 378 ; Peoples.

<p>McL., plaintiff’s testator, opened an account with defendant in 1853, and made deposits and drew checks against his account until May, 1865. Thereafter there was no entry of debit or credit to his account. In an action to recover the balance of the account, plaintiff claimed and was allowed interest thereon. Upon the books of the bank and in McL.’s pass book, up to the time the entries ceased, were entries of interest at different rates. It appeared that in 1867, McL., in an interview with defendant’s president at its banking house during business hours, was informed by that officer that the bank could pay no interest and he was directed to withdraw his money, and in a subsequent interview with defendant’s cashier, he was informed that the bank did not pay interest, and advised, if he desired interest, to deposit his money in a savings bank, to which McL. replied that, he would leave his money until he could get some other place to put it. Held, that the allowance of interest was error.</p> <p>Plaintiffs were permitted to show that McL. had deposits in various other banks, upon which he was allowed interest. Held, that the reception of the evidence was error.</p>

The facts, so far as material, are stated in the opinion. The legislature is prohibited from passing a local law providing for election of members of boards of supervisors. (Const. N. Y. art. 3, §§ 18, 25.) This law divides the city into five wards. Tt declares that the electors of each ward shall elect a supervisor for such ward. It requires such supervisor to be a resident of the ward for which he is elected.

E. Stanton an affirmative judgment on his counterclaim against plaintiff personally. The nature of the action and the facts, so far as material, are stated in the opinion. The counterclaim was proper. (Davis v. Stover, 58 N. Y. 473 : Young v. Brush, 28 id. 673 ; Warrall v. Harford, 8 Ves. 8; Atty-Gen. v. City of London, 1 id. 246.) The issue being of fact respecting the counterclaim, and tried solely as such, the law is admitted, and the question presented is purely of fact.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 17, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The provisions of section 7 of chapter 128 of the Laws of 1891 relieve the defendants from any liability for the injuries sustained by plaintiff, and transfer that liability, if any. to the trustees of the New York and Brooklyn bridge. (Laws of 1891, chap. 128 ; Sutli. on Stat. Const. § 482.) The liability of the mayor, aldermen and commonalty of the city of New York and the city of Brooklyn, growing out of the operation of the New York and Brooklyn bridge, is subject to legislative change. (Code Civ. Pro. §§ 1421, 1425 ; Hein v. Davidson, 96 N. Y. 175; Hessberg v. Riley, 91 id. 377; Gray v. City of Brooklyn, 2 Abb. Ct. App. Dec. 267; Hardy v. City of Brooklyn, 90 N. Y. 435; Bieling v. City of Brooklyn, 120 id. 98.) There is no vested right to a particular remedy. (Morton v. Valentine, 14 La. Ann. 130; Cooley on Const. Lim. 442; Rich v. Flanders, 39 N. H. 304; Collector al Hubbard, 12 Wall. 1; Berry v. Clary, 77 Maine, 482 ; Van Rensselaer v. Ball, 19 N. Y. 400 ; Martin v. Rector, 118 id. 479; York v. Texas, 137 U. S. 20 ; Munn v. Illinois, 94 id. 113 ; Conkey v. Hart, 14 N. Y. 30; Watson v. N. Y. C. & H. R. R. Co., 47 id. 157.) The legislature has pOArer to pass such a laAV having a retroactive effect, and especially such a statute affecting pending actions. (Dash v. Van Kleeck, 7 Johns. 477; Norris v. Beyea, 13 N. Y. 273; People v. Turner, 117 id. 235 ; Drehman, al Stifle, 8 Wall. 603; Morse v. Goold, 11 N. Y. 281 ; Conkey v. Hart, 14 id. 29; In re P. E. P. School, 31 id. 585; Rich al Flanders, 39 N. H. 304; People ex rel. v. Jeroloman, 69 Hun, 30; L. C. Co. v. Barber, 47 Kan. 29; Ex parte McCardle, 74 U. S. 506 ; Patterson v. Philbrook, 9 Mass. 151; Pritchard v. Savanah, etc., R. R. Co., 87 Ga. 294.)</p> <p>Starting the cars while the plaintiff was in the act of alighting was negligence in the persons controlling the train. (Ferry v. M. R. Co., 118 N. Y. 497; Bartholemew v. N. Y. C. & H. R. R. R. Co., 102 id. 613; Roberts v. Johnson, 58 id. 613; Mulhado v. B. B. R. R. Co., 30 id. 370.) That the two cities were liable for the plaintiff’s damages at the time this action was commenced is not open to dispute. ( Walsh v. Mayor, etc., 107 N. Y. 220.) This liability was not discharged by Laws of 1891, chapter 128, section 7, page 295. (McMaster v. State, 103 N. Y. 547; N. Y. & O. M. R. R. Co. v. Van Horn, 57 id. 473.) If the seventh section of the act of 1891 was construed according to the defendant’s claim, it would be unconstitutional as impairing the obligations of contracts. (B. P. Comrs. v. Armstrong, 45 N. Y. 234; Van, Hoffman v. Quincy, 4 Wall. 535 ; Wolff v. City of New Orleans, 103 U. S. 358; Nelson v. St. Martin's Parish, 111 id. 716; Louisiana v. Pillsbury, 105 id. 278; Thompson on Carriers, 540; P. R. R. Co. v. People, 31 Ohio St. 537; Stewart v. B. C. T. R. R. Co., 90 N. Y. 590, 591; State of Louisiana v. City of New Orleans, 109 U. S. 285.)</p>

The complaint in this action alleged that defendant was a corporation organized for the purchasing, acquiring and improving real estate for an apartment house; that it agreed with each subscriber to its capital stock that on payment thereof said, subscriber should become owner and become-entitled .to the peaceable possession forever of a specific apartment in the apartment house to be constructed by defendant, and that it would deliver to said subscriber said specific…

77 entered upon a verdict directed by the court. This action was brought to recover money alleged to be due under a contract with defendant to construct section 6 of the new Croton aqueduct, authorized by chapter 490 of the Laws of 1893, and as damages the extra cost and expense of construction alleged to have been caused by the acts of the defendant. 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. Tlie burden was on the plaintiff to prove his good faith.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made January 6,1893, which reversed an order of Special Term overruling a demurrer to an alternative writ of mandamus.-</p>

<p>Appeal from judgment of tlie General Term of the City Court of Brooklyn, entered upon an order made July 27, 1892, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>