Volume 14 — New York State Reporter

<p>The plaintiff, an engineer upon defendant’s road, while upon his engine, was blown therefrom by the explosion of an accumulation of gas in the fire-box of the engine, and seriously injured. A trial was had which resulted in a verdict in his favor; judgment was entered thereon, which, upon appeal was reversed. Upon the trial plaintiff was permitted to prove in opposition to defendant’s objections, the quality and kind of coal furnished by defendant for use upon the locomotive then run by plaintiff. The tendency of this evidence was to show that the coal was of an inferior quality, fine, and contaminated by foreign substances. That in its practical use considerable quantities would pass-through the flues of the engine, and thence into the smokestack, there coming in contact with a netting placed therein to prevent the escape of burning coal, clogging up the spaces, thereby preventing the passage of gas and smoke, generated by the burning coal; that thereby the gas having no outlet, accumulated in such quantity as to produce the explosion and injury complained of.</p> <p>The ground of objection was, that there was no allegation in the complaint that the fuel so furnished, was of a defective quality.</p> <p>The court, in its opinion, held the objection well taken,, and reversed the judgment. Thereupon the plaintiff applied at special term for leave to amend his complaint, which being granted, the defendant appealed to this court. The injury complained of happened on the 25th day of July, 1881. The action was commenced about the 9th day of June, 1882; issue was joined about the 17th day of July following.</p> <p>The trial was had in May, 1884. The application to amend was made March 1, 1887, shortly after the reversal by the general term.</p>

<p>1. Assignments of mortgages are conveyances—Record of—Necessary TO AFFECT SUBSEQUENT PURCHASERS.</p> <p>Assignments of mortgages are conveyances, and if not recorded áre void against subsequent purchasers of the mortgaged premises, whose interest may be affected by such assignments, and whose conveyances are first recorded, and such a purchaser having obtained good title to the p emises can transmit it unimpaired, although his grantee had notice of the unrecorded conveyance.</p> <p>2. Same—Record of—Who affected by.</p> <p>One, however, who purchases the mortgaged premises subsequent to the recording of the mortgage assignment is affected by notice thereof.</p>

<p>Appeal bond—Action on—What necessary for recovery—Code Civ. Pro., § 1309.</p> <p>It is provided by Code Civ. Pro., § 1309, that an action shall not be maintained upon an undertaking given upon an appeal taken as prescribed in title third, until ten days shall have expired since the service upon the attorney for the appellant of a written notice of the entry of a judgment or order affirming the judgment or order appealed from or dismissing the appeal. Held, that in order for the plaintiff in an action on such a bond to recover it was only necessary to prove the judgment of affirmance and the notice prescribed by the statute, and that he might enter up his judgment-roll at any time before or at the trial.</p>

<p>1. Exemplary damages—May be awarded in action for false imprisonment. . "</p> <p>In an action for false imprisonment the jury may, under proper instruction from the court, award exemplary damages.</p> <p>2. Evidence — When reception and retention of immaterial evidence IS NOT ERROR. -</p> <p>Where immaterial evidence having been received under objection, and the court having said that it would not strike it out, but would direct the jury not to pay much attention to it, omitted to do so. Held, that this suggestion of the court was not error, there being nothing that showed that the party against whom the evidence was adduced was prejudiced by it.</p> <p>3. Same—Error in striking out—How cured.</p> <p>Held, that if error was committed in striking out certain testimony it was cured by the admission of like evidence from the same or other witnesses which was permitted to stand.</p>

<p>Appeal—Question of fact—When determination of may be reversed BY APPELLATE COURT.</p> <p>An appellate court possesses the power to review questions of fact passed upon by the trial court and determine such facts for itself, and review the judgment appealed from even though the evidence be conflicting, not, however, for the reason that upon an original examination it would have reached a different conclusion.</p>

<p>1. Real property—Action relating to title op, etc.—Eppect op NOTICE OP LIS PENDENS—CODE ClV. PRO., § 1671.</p> <p>Where an action is brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property, the pendency of the action is constructive notice to the purchaser from a defendant from the time of filing the lis pendens (Code Civ. Pro., § 1671), and a person whose conveyance of the property is subsequently recorded, is bound by all proceedings taken in the action after filing notice, to the same extent as if he were a party to the action.</p> <p>3. Same—Exception to rule.</p> <p>Held, that a person whose conveyance of property was recorded subsequent to the filing of a lis pendens in an action for the partition of the property, and who was not made a party to the action, was not affected by a judgment rendered therein.</p> <p>3. Same—Possession op real property constructive notice op the RIGHTS OP THE PARTY IN POSSESSION.</p> <p>Feld, that the devisor of the person above referred to being in possession of the property, this was constructive notice of her rights to the parties to the action of partition, and that the purchaser, under the judgment rendered therein, took, subject to her rights, whatever they might be.</p>

<p>1. Married woman—Purchase price of articles bought by a married WOMAN, UPON HER INDIVIDUAL CREDIT, MAY BE RECOVERED OF HER.</p> <p>The fact that a defendant is a married woman, having no separate estate, and engaged in no separate trade or business, does not prevent a recovery for property purchased by her upon her individual credit.</p> <p>2. Evidence—Credibility of witnesses—How affected by proof of FALSE STATEMENT.</p> <p>Where a party to an action gives testimony directly contradicting that given by her in a former action, and under circumstances that lead to the conclusion that in one or the other she wilfully falsified facts, her testimony should be carefully scrutinized, and when not satisfactorily corroborated by other witnesses,or the inherent character of the case,should be disregarded.</p> <p>, 3. Judgment—When it may be reversed for error of fact.</p> <p>It is the duty of the general term, when convinced that a decision, brought before it for review, is not in accordance with the truth, to reverse the judgment for error of fact.</p>

<p>Appeal from a judgment of the supreme court general term, fourth department, affirming a judgment entered upon a nonsuit granted at the circuit court.</p>

<p>City of Buffalo—Presentation of claims in accordance with city CHARTER, TIT. 3, § 7, IS CONDITION PRECEDENT TO ACTION—SECOND PRESENTATION UNNECESSARY.</p> <p>Presentation of a claim against the city of Buffalo in accordance with the provisions of the Buffalo city charter, tit. 3, § 7, that no action or proceeding to recover, or enforce a claim against the city shall he brought until the expiration of forty days after the claim shall have been presented to the common council is a condition precedent to the commencement of any such action against the city, but in no case is a second presentation of such claim necessaiy.</p>

<p>1. Landlord and tenant—Rent—Effect of landlord’s wrongful ENTRY.</p> <p>If the landlord enters -wrongfully upon or prevents the tenant from the enjoyment of a part of the demised premises, the whole rent is suspended till the possession is restored. Following, Christopher v. Austin (11 H. Y„ 216).</p> <p>2. Same—Payment of rent during dispossession of tenant—Effect of.</p> <p>The payment of rent after the wrongful entry of the landlord on part of the demised premises,and while the tenant is prevented from the enjoyment of that part, does not change the rule. So long as the dispossession continues the tenant can insist upon it at any time when payment is attempted to he enforced.</p>

<p>Ah appeal from an order of the surrogate of Monroe county making final distribution of the funds in the hands of A. Francis Sutherland, trustee, etc. Ho question was raised upon the hearing as to the jurisdiction of the surrogate over the subject matter. The question presented relates to the proper construction to be given to the last will .and testament of John McConville, who died a resident of Monroe county on the 8th day of September, 1873, and, four days prior to his death, he made a will disposing of aH his estate, consisting of personal property, in amount about $35,000. He left him surviving one child, then four years of age. The devising clauses of the will are as follows: “I give, devise and bequeath all my estate, both real and personal, to John C. Cochrane, Esq., of Kochester, to hold the same in trust, during the minority of my son, Andrew Stout McConville; and after he shall arrive at the age of twenty-one years, I give, devise, and bequeath the same to Andrew Stout McConville, his heirs and assigns forever.</p> <p>“In case said Andrew Stout McConville shall die before .arriving at the age of twenty-one years, then I give and bequeath to Andrew Y. Stout, of the city of Hew York, the sum of $5,000, and all the rest and residue of my estate, both real and personal, I give, devise and bequeath to John Lukes, John C. Cochrane, Hiram L. Barker, John W. Kelley and John A. Colwell,- to be divided among them share and share alike.” The said trustee named was also made sole executor of the will. The testator’s son died under the age of twenty-one years, and prior to his death the legatees Andrew V. Stout, John C. Cochrane and John W. Kelly died, and before the accounting personal represantatives of their estates were chosen and are parties to the proceedings. The testator’s son died intestate, never having married, and his nearest next of kin is his grandmother, Almira Stout.</p> <p>The surrogate held that the bequests to Andrew V. Stout, Cochrane and Kelly, did not lapse by reason of their death, before the death of the testator’s son, and that each had a vested right in the testator’s estate, which should be distributed to their personal representatives. The administrator of the testator’s son claimed that the bequests to the deceased legatees did lapse, and should be paid to him in behalf of the grandmother, the sole next of kin of the testator’s son. After the death of the trustee, A. Francis Sutherland was appointed his successor. From the decree the administrator appealed.</p>

<p>Motion by defendant for a new trial founded on a case and exceptions ordered by the trial court to be heard here in the first instance. The contract referred to in the opinion as the second contract was in writing and dated September 16th, 1876, in which the plaintiff was mentioned as party of the first part and the defendant as party of the second part, and the agreement was in these words: “In consideration of the agreements and covenants hereinafter contained, the party of the first part hereby releases and discharges the party of the second part, of and from all claims and liability which the party of the first part has or may have against him by reason of their business relations as members of the firm doing business under the name of the Nunda Brewery Company, which firm was dissolved on the 22d day of March, 1875, and particularly for all claims for excess of capital furnished, materials put in the business, or accounts collected, or moneys received of the party of the second-part. . 1</p> <p>“In consideration of the premises the party of the second part hereby sells, assigns, transfers and sets over to the party of the first part all his interest in the accounts, notes and demands which are now due or owing to the parties hereto, as the members of the firm of the Nunda Brewery Company which existed on the 22d day of March, 1875.”</p> <p>A judgment was ordered by the court in favor of the plaintiff for the sum of $1,689.54 to which the defendant excepted.</p>

<p>Appeal from interlocutory judgment entered on order of Monroe special term, sustaining demurrer to the portion of the answer alleged as a counterclaim.</p>

The mortgagor was Alonzo B. Raymond and the mortgagee the Traders’ National Bank of Rochester The mortgage was dated the 16th of June, 1876, and was upon land situated in Monroe county, and the same was recorded on the day of its execution. No bond accompanied the mortgage, and there was no debt existing at the time which it was intended to secure.

The action was brought to set aside a general assignment of the defendant, Benjamin O. M. Tucker, to the defendant, Phillips, on the alleged ground that it was fraudulent as against the creditors of the assignor.

An appeal by the defendant from a judgment of the court of sessions of Allegany county, entered upon the verdict of the jury convicting the defendants of the crime of grand larceny. The indictment contained one count only, which charged these defendants and William Conklin with taking and carrying away a quantity of wool, the property of John Upson, of the value of thirty-one dollars.

Appeal oy the plaintiff from an order of Erie special term denying a new trial and setting aside a special finding of the jury. The action is ejectment brought to recover certain land in the county of Niagara occupied by the defendant, embracing that upon which the railroad was constructed.

Appeal by the plaintiff and also by the defendants Hart and Ellwanger from a judgment entered upon the decision of the Monroe equity term.

<p>Contract under seal—When covenant will be interred.</p> <p>If from the text of an agreement under seal, either in the body of the-instrument or in the recitals or references, there is manifested a clear intention that one of the parties shall do certain acts, a covenant will be inferred, for non-performance of which an action of covenant will lie,</p> <p>2. Same—When a covenant will not be inferred.</p> <p>When a contract is drawn with technical accuracy, and with obvious at? tention to details, and there is an absence of language tending to a conclusion that the contract or promise sought to be set up was intended, such covenant or promise will not be implied.</p> <p>3. Same—Construction of.</p> <p>The defendant being indebted to the plaintiff for the amount of a certain note, assigned a certain bond and mortgage. This assignment was under seal and was acknowledged by defendant. It contained the following clause: “ Whereas William J. McKee * * * is indebted unto the firm of Daniel Crouse & Sons * * * . The indebtedness of said William J. McKee to the said firm of Daniel Crouse and Sons, being-herein and hereby duly acknowledged and admitted, as above stated. Now, therefore, to secure the payment of said indebtedness by said McKee to said Daniel Crouse and Sons, know all men by these presents that I, William J. McKee, above named, the party of the first part, to secure the payment of the aforesaid indebtedness by me to said firm.” Then followed a transfer in ordinary form, and a provision that out of the moneys, collected on the bond and mortgage, the party of the second part were to take the debt, etc., and the balance, if any, to be paid McKee or his assigns. Held, that there was no intention to furnish any new obligation against the defendant for the debt. That the sole object of the paper was to furnish the plaintiffs security for the debt; and incident to its accomplishment the amount of the debt was definitely fixed.</p> <p>4. Same—Recognizing a debt in an instrument under seal dabs not GIVE IT THE EFFECT OF A SEALED INSTRUMENT.</p> <p>The fact of an unsealed note being recognized by. an instrument under al, does not change the character of the note and give it the effect of a sealed instrument.</p> <p>5. Statute of limitations—Pleadings—Must be taken by answer— Code Civ Pro., § 413.</p> <p>Under the Code Civil Procedure, section 413, the objection that the action was not commenced within the time limited, can be taken only by answer. The cause of action is, therefore, the original debt and is to be counted on as such. The evidence used by the plaintiff to avoid the defense of the statute of limitations, does not change the nature of the cause of action.</p> <p>6. Same—Evidence does not change cause of action.</p> <p>The original obligation is still the cause of action, and if that is not under seal, it is barred within six years from the acknowledment.</p>

Action in the nature of a creditors bill to set aside a general assignment made by the defendant, Williams for the benefit of creditors and giving preferences. The plaintiff recovered against Joshua W. Church, as maker, and Elliot S. Williams and Andrew W. Mills, as endorsers, upon certain promissory notes held by it, three several judgments in the month of May, 1887. Executions were issued on each to the proper county and returned wholly unsatisfied.

<p>Appeal from a judgment of the county court of Monroe county reversing a judgment in justice court-, and from an order of restitution.</p>

By the terms of the will the testator disposed of all his estate, consisting of real and personal property, naming his widow, Isabella Baird, and his daughter, Helen A. Baird, as the only devisees and legatees. He left him surviving two other children, James and William, the issue of a former marriage, who were of full age. The value of the estate was between $10,000 and $12,000. The widow and Henry J. Hetzel were named as executors.

<p>1. Mortgages—Evidence—Necessary to show that a deed was intended as SECURITY.</p> <p>It is the rule that the evidence required to show that a deed absolute in form was intended as a security must be clear, explicit, unequivocal and convincing.</p> <p>3. Executor—Power op sale—Title op execujor after the execution op the power.</p> <p>When under the terms of a will the testator gives to his executor a power of sale, after having executed the power vested in him the executor ceases -to have any interest in the property upon which he as such could maintain an action.</p> <p>3. Parties—Defect op, how and when the objection must be raised.</p> <p>If a defect or misjoinder of parties appears on the face of the complaint it should be taken advantage of by demurrer. But if the defect does not appear upon the face of the complaint the objection may be raised by the answer and unless so raised is deemed waived'.</p>

The action was brought to recover damages for personal injuries suffered by the plaintiff, alleged to have been occasioned by the negligence of the defendant, and the plaintiff recovered.

The defendant is the sheriff of Niagara county. The action is trover, for the conversion of a quantity of household goods and furniture.

<p>Appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff.</p>

<p>Bills and notes—Interest—Evidence showing interest to have been PAID IN ADVANCE.</p> <p>Where it appeared by the recital in a receipt of the plaintiff dated March 1st, 1884, that the interest on a certain note was payable in advance, and it appeared from this time forward that the defendants paid the interest every three months, the only evidence which conflicted with this view being a letter dated December 2d, 1886, which read “ enclosed please find check for $37.50 for interest due to December 1st, 1886." Held, that the evidence showed that the use of the word “ to ” in this letter was an over sight,-or-mis take, and that the interest had been paid in advance.</p>

On the 8th day of April, 1875, Charles Edgar Appleby leased to the plaintiff certain premises in the city of New York, situate on the Eleventh avenue and between Fortieth and Forty-first streets, which had been used as stock yards for the term of ten years'from the 1st day of May, 1875, at a yearly rental of $21,370, payable quarterly, and the taxes-which might be imposed upon said premises.

<p>Appeal from a judgment entered in favor of the defendants upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>1. Practice—When not necessary to ask to go to the jury.</p> <p>When a complaint is dismissed on the "whole case it is not necessary to ask tp go to the jury, for exception then taken presents the case for review. Qumre whether the converse of that proposition holds good</p> <p>2. Same—When appellant has a bight to review the case</p> <p>When the motion to dismiss the complaint and the plaintiff’s motion for leave to go to the jury are substantially simultaneous the exception to a denial of the latter is sufficient to secure the right of appeal.</p> <p>3. Pleading—When complaint pbopeblt dismissed—Attobney and client—When belation does not exist.</p> <p>A certain bond and mortgage were assigned by the plaintiff to one Wood who in consideration of the transfer agreed to place them in the hands of the defendant for collection and to pay to the plaintiff one-third of the monies collected, and to instruct the defendant forthwith to pay ->ver to the plaintiff such one-third. The defendant agreed at the same time to carry out the terms of the compact between plaintiff and Wood as to the one-third interest so far as he was concerned. The plaintiff brought this action alleging that he had employed the defendant as an attorney and counsel to collect monies due on a bond and mortgage Held, That the facts did not prove any employment of the defendant by plaintiff. That the complaint was properly dismissed. That the plaintiff was in error in predicating the action upon the allegation of the engagement of the defendant as his attorney and counsel.</p>

<p>Bailment—Security deposited as collateral on an account—Bight OP PLEDGEE TO HOLD SAME UNTIL PAYMENT OP BALANCE DUE.</p> <p>Bumsey & Co. were dealing in purchases and sales of lard and grain with the defendant, and assigned their accounts for the balances to the-plaintiff. The defendant had deposited with Rumsey & Co., certain bonds-as collateral. On the trial of this action brought to recover the balance-due, the defendant insisted that these bonds should be deducted from the balance appearing on the face of the accounts or that he should have the advantage of them by way of counterclaim. Held, that the firm of Rumsey & Co. had the right to recover the amount of their debt against the defendant, and still hold the bonds in their hands as security for its ultimate payment. And until payment in fact should be made, the defendant, had no legal right to the bonds or to the allowance of their value as a counterclaim in the action.</p>

<p>1. Assignment fob the benefit of cbeditoes—Pabtnebship—One pabtneb cannot make.</p> <p>One partner is not empowered to make a general asssignment on account of the temporary disability of his co-partners by illness.</p> <p>2. Same—What facts do not justify assignment—When beceiveb appointed.</p> <p>The plaintiff was placed in an asylum as an insane person and discharged in less than a month. During such stay in the asylum his partner made a general assignment. Feld, That the assignment was not justified under the circumstances and that the disagreement was suchas to require the appointment of a receiver of the partnership effects.</p>

<p>1. Libel—When action fob can be maintained.</p> <p>The plaintiff was a juror impanneled in a certain criminal prosecution tor bribery The complaint charges that the defendant, in connection ■with another, during such trial, willfully and maliciously spoke and published, and caused to be published, etc., false, malicious, defamatory and scandalous words to the effect that plaintiff was guilty of willful and corrupt perjury in answering certain questions put to him touching his qualification as such juror. Held, that the charge made by defendants was not a privileged communication, if the allegations of the complaint were established; that the defendants, being volunteers in the legal proceedings, the circumstance that the libel was contained in an affidavit in such proceedings, was unimportant.</p> <p>3. Same—May be perpetuated by more thar ore.</p> <p>A particular libel may be perpetrated by more than one person.</p>

<p>Interpleader—When bill properly granted.</p> <p>In an action against the defendant company for certain insurance money, the insurance moneys in the hand of the defendant were conceded to be due to the children of Therese Sand. The plaintiffs claimed to be her only lawful children and Bertha Koehler, also, claimed that she was a lawful child of said Therese Sand, and demanded that she be allowed to share in the distribution, but her claim was resisted by the plaintiffs on the ground that she was not born in wedlock. Held, that Bertha Koehler was properly substituted as defendant by an order of interpleader.</p>

Theron Sackett was the father of the parties, and died intestate, December 12, 1881, leaving two sons and three daughters. Two of the latter, including the plaintiff, were invalids. The mother died many years ago, and Theron married a second wife before 1870. Soon after the marriage she abandoned her husband and never returned to reside with him. The plaintiff and her sister Julia lived with her father on the farm until the time of his death.

Appeal, first, from a judgment of separation and a separate maintenance-in favor of the plaintiff against the defendant on the ground of abandonment, and from an order refusing the defendant’s motion to amend the judgment. Second.

<p>Pleading—Complaint—Irrelevant matter—Striking out—Discretionary—When improper.</p> <p>The plaintiff has great latitude in setting forth, in his complaint, whatever in good faith he thinks may be important, .especially in cases where the relief demanded is of an equitable character. It is not a matter of right to have irrelevant and redundant allegations in a complaint stricken out. The court should exercise its power, which is discretionary, with reluctance and caution.</p>

<p>Pleadings—Evidence—What admissible.</p> <p>The plaintiff alleged in his complaint that by the assignment from one S. he became the owner of the claim for the damages for which the action was brought The defendants denied that allegation and offered in evidence a general assignment made by S, prior to the assignment to pla'ntiff for the benefit of his creditors. Held, That the defendants were entitled under the denial to prove that the plaintiff did not become the owner of the claim by means of the assignment executed by S, and that the general assignment was legal evidence of that fact.</p>

<p>1. Principal and agent—Broker has no authority to receive payment FOR PROPERTY SOLD.</p> <p>A broker employed in the sale of property, without authority from his. principal, is not entitled to demand or receive payment for the commodity sold.</p> <p>3. Same—Payment to broker does not discharge vendee.</p> <p>Where by the order on the warehousemen, directing the delivery of the goods sold, it appeared that the plaintiffs were the vendors thereof, and the defendant, ■ after its receipt, made payment to the brokers selling the property. Held, that defendant did so at its own risk; that if the vendor did not receive the price so paid from the broker, the payment did not discharge defendant’s liability.</p> <p>3. Same—Vendor’s right of action against vendee.</p> <p>Although the contract for the sale was made by the brokers withou disclosing who the principals were in the sale, the plaintiffs as the princi pals had the right to bring and maintain their action against the defendant for the purchase price of the property.</p>

<p>Appeal from judgment of general term.</p>

<p>1. Evidence—Sufficiency of.</p> <p>Where a witness testifies to the existence and terns of a contract, although his evidence is not expressly contradicted by other witnesses, the court may find the transaction to have been otherwise than as testified to by him if circumstances are proved contradictory of his testimony.</p> <p>2. Contbacts—When a contbact is executed in violation of statute THE PABTIES BEING IN FAKI DELICTO WILL NOT BE BELIEVED BY THE COUBT—U. S. Rev. Stat., § 5201.</p> <p>It is provided by U. S. Rev. Stat., § 5201, that “no association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith.” Held, that where a contract in violation of this provision had been executed, the parties being in pari delicto would not be relieved by the court.</p>

<p>1. Referee—Findings based on conflicting evidence—How regarded ON APPEAL.</p> <p>The findings of a referee, based upon conflicting evidence, will not be-reversed upon appeal, when it appears that substantial justice has been done.</p> <p>2. Evidence—Of party in interest—How regarded.</p> <p>No party to an action sworn in his own behalf, has a right to insist that his testimony shall be given full weight; it may be entirely disregarded.</p>

<p>1. Wills—Construction of—Sales.</p> <p>A testator, by his will, directed his debts and personal expenses to be paid out of his personal property, and then gave his wife a legacy of ¡$3,800, and directed it to be paid her in the course of administration by his executors in cash, out of any money of his estate after adding $1,000 to the bulk of his estate from "the sale of a farm, which by that will he gave to one of his sons. Further provision was made for other legacies to be paid out of the estate left after satisfying the bequests previously made,- which in event of there not being sufficient left to pay all of them were to be paid pro rata. The testator further stated in his will that he expected to die seized of the farm and other lands, and then give all his real property, except the farm, to the executors in trust to sell and make a fund out of which the legacies and bequests were to be paid. By a codicil subsequently made the testator revoked the demise of the farm and gave it to another son, “ free and clear of any conditions whatever, etc.” And then adds that it is expressly understood that the latter son is to pay out of the estate all the just debts and legacies as it should be, under the will and codicil. No other change in the provisions of the will was effected by the codicil. Held, that in giving construction to a will and ascertaining the intention of the testator the court would put itself in the place of the testator, with his knowledge of his estate, and from that standpoint, consider the motives, objects and desires, which were likely to have been upon his mind, and for the purpose of giving effect to the intent would sometimes add or reject a word.</p> <p>S. Same—Devise—Constbuction of.</p> <p>Held, that the devise of the farm was not charged with the payment of the decedent’s debts.</p> <p>3. Same—Devise upon condition—Effect of acceptance.</p> <p>Held, that a party, who accepts a devise of real property charged with debts or legacies, as conditions of the devise, becomes thereby liable for. the payment of the said debts and legacies.</p> <p>4. Same—Devise upon condition—When conditions do not attach.</p> <p>Held, that where a devisee had taken possession under such a devise, and the land was subsequently sold under a decree of the surrogate to pay the decedent’s debts, no liability resulted to the devisee.</p> <p>5. Same—Devise upon condition—Pboof of acceptance must be clean.</p> <p>Held, that in such cases the evidence of acceptance of the devise should be clear.</p>

The action was to recover damages sustained by the plaintiff, in consequence of the alleged negligence of the defendant in not properly guarding a gutter or excavation by the side of a sidewalk. The plaintiff, while walking in the night upon and along the sidewalk, stepped off into the excavation and was injured. William street in the village of Whitehall runs northerly, Sanders street intersects the westerly side and is at right angles to William street.

<p>1. Contract—Construction op.</p> <p>This action was brought for the dissolution of a partnership and accounting between the partners and was tried before a referee, resulting in a decree dissolving the partnership and adjudging that the defendant pay a certain sum to the plaintiff. It was found by the referee that by the contract constituting the co-partnership, it was agreed that after the defendant in consideration of the assignment to them as security of a contract which the plaintiff had procured should advance the money necessary to fulfill it, and should actively assist in its fulfillment. The plaintiff and one of the defendants to devote their time to certain specified-parts of the work, profits or losses to be- borne equally by the parties. Held, that in the absence of any agreement to pay interest on advances the referee was justified in construing the agreement to mean that the defendant would furnish the money required for the privilege of sharing in the profits of the contract which plaintiff had procured, and that interest was properly disallowed.</p> <p>2. Referee’s findings—When not disturbed by appellate court.</p> <p>Held. That charges, the allowance or rejection of which was dependent upon conflicting evidence, would not he disturbed by an appellate court, the referee having had the advantage of hearing the testimony of the witnesses and the benefit of personal examination of the hooks and papers.</p>

<p>1. Wills—Ambiguity—May be explained by reference to subbounding CIRCUMSTANCES.</p> <p>Where the language of a devise is ambiguous, proof of the circumstances surrounding the testator may be resorted to to make clear his meaning and get at the intention imperfectly expressed.</p> <p>2. Description-interpretation of.</p> <p>Where the description of premises named in the complaint and decree in an action for the partition of real property did not describe or in terms include property the subject of devise, it could only be made to include it by means of proof aliunde, and the plaintiff in this action upon a sale in the action for partition under his control, excepted the premises from the sales under the decree, and accepted a deed which excluded the premises devised to him, the whole proceeding being confirmed by an order of court procured by him. Feld, That it was fairly presumable that the description of property contained in the complaint and decree in the partition action was not intended to include the premises devised to the plaintiff.</p>

<p>1. Contract—What dabs not constitute one as general agent.</p> <p>The plaintiff was employed hy the defendant for some time, at a stated salary per month, and claims that at an interview had between them the defendant agreed to pay an increased salary. The testimony of the parties was diametrically opposed in respect to the latter point. Beside the plaintiff, the defendant had in his employ a bookkeeper, who performed various duties for him, among others that of paying the plaintiff. The plaintiff testified under objection that he regarded this man as agent of the defendant. The employee himself testified that he was bookkeeper and cashier for the defendant, and that he had a general supervision of his business. Held, that this proof did not show him to be the defendant’s general agent, and did not make statements made by him to the plaintiff, in relation to his employment, whim the defendant was not present, admissible as against the defendant without evidence showing that he was acting under special direction.</p> <p>2. Evidence—Book entries—Evidence explanatory of.</p> <p>Entries in the bookkeeper’s books were proved to have been made to the effect that the plaintiff’s salary was as he claimed. Held, that from these entries it might be inferred that an agreement was made as asserted by the plaintiff, and that therefore evidence offered by the defendant to explain the entries was wrongly excluded.</p> <p>3. Same—Scope of which should be allowed.</p> <p>Held, that the defendant should have been allowed to testify directly on the question, ns to whether he had ever made such a contract as claimed by the plaintiff, and not merely limiting his testimony to a particular time.</p>

<p>This is an. action brought by the plaintiff to recover of defendant’s testator for a trespass alleged to have been committed upon lands in the possession of the plaintiff. The first cause of action alleged in the complaint, is for a trespass upon subdivision 8, great lot 5, Gen. Bleecker’s & Lansing patent. The second cause of action stated in the complaint is for a trespass alleged to have been committed upon subdivision 2 of great lot 3, same patent; and it is with reference to the evidence offered to support the second cause of action that this opinion relates.</p> <p>Subdivision 2 of great lot 3 is a wood lot which has never been fenced, and it was admitted upon the trial, as a fact in the case, that the plaintiff was the owner of the east part of half of said lot, and the defendant the owner of the west half of said lot; the plaintiff procuring his title from one William H. Collins, while the grantor of the defendant was Joseph A. Collins.</p> <p>There was no fence separating the part owned by the plaintiff from that owned by the defendant. It appears that there were marked trees at about the location where both sides claim the division line to be. Such marked trees seem to stand for two different lines, although a very few feet apart. The plaintiff claimed that the west line of marked trees was the true boundary line; the defendant, on the other hand, insisting that the east line was the correct one. The trespass alleged to have been committed by the defendant was between these two lines of marked trees.</p> <p>Ho proof was offered tending to show where the boundary line was, as established by the conveyance of the Collins’ to the plaintiff and defendant, respectively, or from the grantor of the Collins’ to them. The plaintiff, however, sought to establish the west line as the correct one, by evidence, which he claimed proved an agreement between William H. Collins, plaintiff’s grantor, and Joseph A. Collins, defendant’s grantor, made about nineteen years before the trial of the action, which established such line.</p> <p>William H. Sweet testified: “I know defendant and sub-lot 2, great lot 3; know a line of marked trees running through the centre of the lot; was present when that line was made; knew William H. Collins and Anson Collins in their life-time; knew Walter D. Woodworth, also Lodowick Wilson; they were present when that line was made; they were running the fine and I and my father went to where they were, and they run the line across them; Woodworth run it, he was a surveyor; they marked aline;</p> <p>I don’t recollect which one marked it, but one of the three marked it; I have known that fine ever since; I have been over it a good many times. Q. What was said on that occasion, after the fine had been run through to the upper end, between the parties ? A. They said they had got the fine through, and each party knew where the fine was; Anson and William H. Colhns said that; think it was about nineteen years ago that I saw Collins and Wood-worth on lot 2; the Collinses and Woodworth and Wilson are all dead; Anson Collins owned one-half and William H. Collins the other.”</p> <p>There is no other evidence in the case, than that quoted, relating to the alleged location of a boundary line by William and Anson Collins; neither is there any evidence touching a previous dispute in relation to the fine, or proof of acts tending tó show acquiescence in such fine on the part" of either of the Collins while they were the owners of the premises, of on the part of the defendant, John Warner, after he purchased from Joseph Collins.</p> <p>At the close" of the plaintiff’s case, defendant moved for a nonsuit, which was denied. Such motion was renewed at the close of the case, and denied. The court saying, “And as to the other lot (meaning lot in question), I will send it to the jury on the question, which is the correct line; ” to which ruling defendant excepted. The case was submitted to the jury, and resulted in a verdict in favor of the plaintiff.- From the judgment entered thereon, an appeal was taken by the defendant to this court. Subsequent to the taking of the appeal the defendant died; and thereafter, by an order, duly made and entered, these defendants' were substituted as parties defendant.</p>

<p>Appeal from a judgment in favor of the plaintiff entered ¡ in Franklin county upon the report of a referee.</p>

<p>1. Contract—Subject of.</p> <p>The parties to this action entered into an agreement whereby it was agreed, on the part of the plaintiff, that the defendant should have the exclusive right of using an oiler, invented by the plaintiff, on its mowing and reaping machines, and the right, but not exclusive, to use it on other machines, and on the part of the defendant, that it would use said oiler upon its mowing and reaping machines, and would pay the plaintiff therefor the reasonable value of such use. This action was brought to recover upon the agreement. No claim was made, on the part of the defendant, that the patent was invalid. Held, that whatever might have been the prior state of the art upon the subject of oilers, the plaintiff had something to sell.</p> <p>2. Same—Consideration—What will constitute.</p> <p>Held, that the deprivation on the part of the plaintiff, or the benefit to the defendant, arising through the grant of the monopoly, were either sufficient consideration for the contract.</p> <p>3. Same—Recovery upon—What sufficient to support.</p> <p>Held, that in order to recover, it was not incumbent on the plaintiff to show that the defendant had made use of its right, nor was it a defense to the action, that it had not.</p> <p>4. Same—Action for breach—Measure of damages.</p> <p>Held, that the measure of the plaintiff’s damages was the reasonable value of the use of the oiler on one of the machines manufactured by the defendant, multiplied by the actual number of machines manufactured.</p>

<p>1. Evidence — Testimony of attobney ■—Competency of—Executob’s ACCOUNTING.</p> <p>Upon the accounting of an executor, endeavor was made to surcharge his account with certain moneys claimed to have been advanced to him by the testator, out of the share which might come to him after the testator's death. This sum was claimed by the executor to have been given him by the testator, and the testimony of an attorney to whom he had gone with the testator to have an agreement in regard to the money drawn up, was offered in proof of that. Held, that testimony of the attorney as to statements which each party openly made to the other, and which betrayed no. confidence reposed in him, was competent.</p> <p>2. Gift—What will not invalidate.</p> <p>Held, that the fact that the donee agreed to pay interest upon the gift, did not invalidate it as a gift.</p> <p>3. Wills—Legacy—Construction of.</p> <p>The fifth clause of the testator’s will was as follows: “ I give and bequeath to all my grandchildren and great-grandchildren that may be living-at the timé of my decease and * * * all the rest, residue and remainder of my estate to be divided equally between them, share and share alike, except in the division I give to my granddaughter G-. I-L, * * * three extra shares of said residue and remainder of my estate.” Held, that this was properly construed by the surrogate to be a direction to divide the residuary estate in portions, the aggregate number of which should be three in excess of the number of legatees and of these to give G-. II. four and the other legatees one.</p> <p>4 Referees—Must respond to requests to find — Code Civil Pro., §§ 2546, 1023, 993—Failure to—When it will not justify reversal of JUDGMENT.</p> <p>Held, that by Code Civil Procedure, §§ 2546, 1023, 993, the duty was imposed upon a referee to respond to requests to find properly submitted to him, but that his neglect to do so did not furnish ground for the reversal of a judgment based upon his report, unless prejudicial to the appellant.</p>

<p>Contract—Construction of—Liability fob wages.</p> <p>The owner of a stone quarry entered into a contract to supply stone to a railway corporation, and subsequently assigned it to another as collateral security for a loan, the assignment empowering the assignee at any time to enter and prosecute the work under the contract, and to receive all moneys due or to become due thereon until the whole indebtedness should be paid. Held, that the assignee never having availed herself of the authority to prosecute the work, the assignment aid not alter the relations existing between her and the assignors, so as to make her the principal in the prosecution of the work under the contract, and that she was not liable for the wages of laborers engaged in that work.</p>

<p>1. Partnership—Evidence.</p> <p>This action was brought to recover for services rendered and moneys paid out by the plaintiffs upon the request and for the defendants testator and another, as members of a firm of which, at the commencement of the action, the defendant was the survivor. As between themselves, the parties, were not, in fact, co-partners, but a firm name was used by them in keeping accounts with each other, and with the testator’s knowledge and consent in many of their transactions with various parties who dealt with them. Tickets issued to their workmen, also to the testator’s knowledge bore a firm name, bills made out as against the firm were often paid by the testator, and in one instance a sale was made in the firm name, and in an action for the purchase-price the parties in their complaint described themselves as co-partners. Held, that evidence of this justified the finding that the parties held themselves out as co-partners.</p> <p>2. Same—Recovery against persons as partners between whom no such conventional relation exists.</p> <p>While conducting the business,-the party associated therein with the testator caused an order for work to be written and delivered to the plaintiffs, which was signed with the firm name, which he subsequently countermanded by an order signed in his own name. Relying on the former as an order of the firm, the plaintiffs performed the work, the testator having full knowledge of that fact. Held, that the plaintiffs relying upon that fact, and the order being apparently within the scope cf the firm.business and for its benefit, were entitled to recover.</p> <p>8. Same-Evidence of existence as to parties dealing in reliance on its actual existence.</p> <p>Held, that a question by the plaintiffs to one of their number testifying in their behalf, as to whether the work was done on the faith in the co-partnership was proper. That the liability of the testator was through his holding out that a relation existed, which did not in fact exist, but which he was estopped from denying as against any one who parted with value, relying on its existence.</p> <p>4. Evidence—Explanation of entry in book—Competency of.</p> <p>Held, that the entry made by one of the plaintiff’s witnesses in his diary in the course of the work, was subject to explanation.</p>

<p>1 Manufacturing corporations—Laws 1848, chap. 40—Contracts— Validity of.</p> <p>It is provided by Laws 1848, chapter 40, section 23, that if the indebted ness of any company incorporated under that act shall at any time exceed the amount of its capital stock, the trustees of such company assenting thereto shall be personally and individually liable for such excess to the creditors of such company. A person who occupied a position as president and leading manager in the bank of which the plaintiff is receiver, and a similar position in a manufacturing corporation, entered in an agreement with a party who was trustee in the latter, whereby the debt then due from the corporation to the bank should be treated as suspended, and the former party should make drafts on the treasurer of the corporation, which, after acceptance by him, should be indorsed by the parties to the agreement individually; that they should also individually guarantee other paper of the company when advisable, which paper so indorsed and guaranteed should be used in the purchase of wool for the company in manufacturing cloth; that such wool, and the cloth manufactured therefrom, should be property of the parties to the agreement until the cloth was disposed of, and that the proceeds thereof should be applied to the supplies, etc., of the mills and of the paper so indorsed and guaranteed, and no part of such proceeds was to be applied to the payment of the old or suspended debt held by the bank until all such claims for paper, etc., were satisfied. After this agreement all the earnings and proceeds of the mills were deposited in the bank, and all the payments and disbursements of the company were made through the bank. Time drafts on the company were usually given for supplies, and these came to the bank through its exchanges. More than sufficient was deposited with the bank to pay all these drafts, etc., exclusive of the old debt. The bank, however, in making payments on account of the company did not apply such payments upon the drafts which it received through its exchanges, but upon the old paper of the company, and the interest thereon in the order of its age, and kept the new paper unprotected as unpaid interest bearing paper Some of the old debts of the company to other creditors were also paid by the bank, so that event ally the old debt of the company appeared on the books as paid, and the entire indebtedness of the company appeared as on the new paper, to the creation of the debt of which one of the defendanls had assented, and the other to a part. Held, that though the' agreement, while executory, might have been invalid as against the bank, because the officer which entered into the agreement on its part also occupied a like position in the company, yet, having been in good faith carried out, it was valid as an executed contract.</p> <p>2. Same—Laws 1848, chap. 40, § 23—Liability op trustee—When it DOES NOT ARISE.</p> <p>Held, that the action of the defendants was not the creation of a debt on the part of the company, and that they were not liable to the plaintiff under the statute above quoted.</p>

<p>Evidence—Proof op declaration against proprietary interest.</p> <p>In an action of ejectment an ancient deed to the party through whom the plaintiff claimed title was proved, and proof was made of a declaration by the person through whom the defendant claimed title while in possession of the property in question, that she was not the owner of it, but that the grantee in the deed was. The declaration was made to a tax collector in response to his demand for taxes on the premises in question. Held, that the declaration was competent as evidence, and supported that furnished by the deed.</p>

<p>1. Water courses—Right to the use oe—When rights are established BY USES.</p> <p>The plaintiff’s intestate, in February, 1874, received a conveyance of a. piece of land situate on the bank of a river upon which was a starch factory, the power to operate which was furnished by water supplied from a dam extending across the river about ten feet above the starch factory. In an action brought to determine the right of parties to the use of the water of the stream, Held, that the plaintiff was not entitled to a higher head of water at his bulkhead than was necessary at the time of the grant with the wheels then used, and that plaintiff by adopting and using the factory for a period of six years after the grant, with the wheels used at the time of the grant and head of water in his bulkhead as used at the time, established and accepted that as the head of water to which he was entitled.</p> <p>2. Same—Equity will adjust bights in.</p> <p>Equity will adjust the respective rights of parties to water or riparian property.</p> <p>3. Remedies—Legal rights may be established and protected by equitable remedies in the same action .</p> <p>Legal rights may be established and equitable remedies, by injunction restraining interference therewith obtained in the same action.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer by the defendants, composing the firm of A. H. Woodward & Company.</p>

<p>Wills—Undue influence—When will not be denied fbobate because of.</p> <p>An instrument will not be refused probate as the last will and testament of a testator on the ground of undue influence and restraint if it appears that, although influences were exerted upon the testator he had sufficient strength of purpose to resist them</p>

<p>1. Accident association—Representations in application for membership—Effect of falsity of.</p> <p>The application for membership in the defendant association contained a statement that certain matters thereinafter stated were warranted to he true and formed the foundation of membership. In an action brought to recover under the contract of membership, recovery was opposed on the ground that one of the statements above referred to was untrue. Held, that the court properly charged the jury that if the untrue statement was inserted by the defendant's agent at the request of the plaintiff, it would be sufficient ground to defeat the action, but that if inserted by the mistake or inadvertence of the agent in making out the application, that it-would not vitiate it.</p> <p>2. Same—Evidence—Competency op.</p> <p>Held, that it was competent to prove by paroi, the actual transaction between the plaintiff and defendant’s agent.</p>

<p>Dower—When title in husband will be inferred.</p> <p>In an action for dower, it is not necessary to prove the actual possession of the husband’s grantee, where it appeared that said grantee contracted for the sale and conveyance of the land as its owner, and to perform the contract executed, and delivered the deed to the husband who with his. grantees’ had apparently been in the possession of the property under the title so conveyed The jury could presume from these facts that the husband became owner of the land through the deed, executed and delivered to him.</p>

<p>Practice—Attachment—Affidavit on information and belief—Code Civ. Pro., §686.</p> <p>In the affidavit of the attorney, on which the attachment in question was issued, was a single allegation to the effect that the affiant was informed and believed the plaintiff was justly entitled to receive the sum named, over and above all counterclaims known to him. There was no excuse given for the failure to furnish the affidavit of the plaintiff, and it did not appear that the affiant had any communication with him upon the subject of the cause of action for over a month prior to the time of the application for the attachment. Held, that, while under certain circumstances the affidavit might be made upon information and belief, the requirements of the Code, in reference to the existence of counterclaims, had not been complied with.</p>

<p>Í. Executors and administrators—Powers and duties.</p> <p>Where a person appointed administrator had personal knowledge of the existence of a last will and testament of the deceased, and without calling in the aid of any court, took upon himself to pronounce the will null and void, Held, that he thereby incurred the hazard of administrating the estate as though the deceased had died intestate.</p> <p>A Same—Power or court.</p> <p>The will was afterward probated and a legacy being due by the terms thereof, and there being no part of the estate undistributed, an order was made removing the administrator and directing him to deposit the amount of the legacy with the chamberlain of New York city. Held, that the court had power to make the order.</p> <p>S. Judicial notice.</p> <p>The supreme court, general term, must take judicial notice of its own orders of a public nature.</p>

The fifth clause of the will referred to in the opinion was: “Fifth.

<p>Appeal from order allowing plaintiff to amend summons and complaint by striking out the name of the World Publishing Association and substituting therefor the Press Publishing Company.</p>

<p>Practice—Answer—Motion to strike out as frivolous—When denied.</p> <p>The plaintiff sued, as administratrix de bonis non, of M. L. Spafford. In the sixth paragraph of the complaint she alleged that she was duly appointed administratrix, etc. The defendant, by his answer, denied any knowledge or information sufficient to form a belief as to the allegations in the sixth paragraph of the complaint, except as to certain matters which he denied positively, and "except that he is informed and believes that J. B. Spafford became the personal representative of the estate of said M. L. Spafford, deceased, that said estate was mentioned as a preferred creditor in the assignment in the complaint referred to * * * and that said J. B. Spafford died,” etc. Held, that this denial raised an issue as to" the representative capacity of the plaintiff. That the aT'"'”er could not be stricken out as frivolous.</p>

- Appeal from an order setting aside the report of a referee in proceedings under the statute to hear and determine a claim made by the plaintiff against the defendants.

<p>1. Negligence—Excavating bock and dirt near street—When prima vacie case made.</p> <p>The plaintiff's servant was driving, on the avenue in New York city, a. horse belonging to the plaintiff. Near the side of said avenue the defendant was engaged in removing rock and dirt from the adjacent lands. When said servant was directly opposite the point where the excavation was going on, a great mass of rock and earth was suddenly, without warning, loosened by the defendant, and fell with a tremendous noise, and dust and a fragment-of rock struck the said horse, causing him to take fright and run away. The horse plunged down a rocky embankment and was injured. Ifeld, that the complaint was improperly dismissed</p> <p>2. Same—When negligence presumed—What care required.</p> <p>The defendant was bound, while at work upon the lots adjoining the street, to use care, skill and vigilance, and to warn passers of any danger to which they were exposed thereby. If, in the conduct of the work, stones were thrown upon the highway, whether resulting from & blast or otherwise, there arises a presumption of negligence in the absence of proof to the contrary.</p> <p>8 Same—Evidence—Competency of.</p> <p>Evidence that other horses had been frightened by the manner in which this work was conducted, and that defendant had knowledge of the fact, was competent.</p>

<p>1. Notes—Pasty who is bound to pay cannot pubchase.</p> <p>One who owes a duty to discharge an obligation cannot purchase it and thus continue it in force. A purchase in form becomes in fact a payment, and discharge.</p> <p>2. Same—When pabty is bound to pay.</p> <p>The plaintiffs, in consideration of an assignment to them by_ him, agreed in writing to advance, to one B., sufficient money to pay all indebtedness outstanding against him, a statement of which indebtedness was annexed to the agreement. The notes in suit were set out in the statement. The defendant was the endorser on said notes. The plaintiffs sent check to-the holders of said notes for the amounts due, and received the notes. This action was brought to hold the endorser on the theory that said notes were bought. Seth, that the promise of the plaintiffs to pay the notes created a duty upon them to discharge the same, and that this was inconsistent with a right to purchase the notes.</p>

<p>Appeal from judgment decreeing a specific performance of a contract for the purchase of land, and granting an extra allowance.</p>

<p>I. Surrogate's court—Jurisdiction conferred by Code Civil Procedure, § 3813!</p> <p>Section 3813, Code Civil Procedure, does not confer upen the surrogate the powers of a court of equity in actions to set aside releases of claims-under a will for fraud, or in actions to sustain and enforce such releases because of the signer’s inequitable assertion of the released claim</p> <p>3. Same—What claims covered by said section.</p> <p>This section was intended to cover disputed claims of third persons against the estate, and that is all.</p> <p>3. Equity court—When an action for repose can be maintained—' Suit quia/timet.</p> <p>From the plaintiff’s complaint it appeared that the plaintiff’s accounts, as executor, were finally settled in 1867, more than a year after the release in question was given; that the decree on such settlement included the defendant’s share of the estate, and had never been questioned or attacked;, that the defendant’s present claims were made in bad faith for the sole purpose of harassing the plaintiff, delaying the settlement of his accounts as testamentary trustee, and hindering the administration of the estate; that the surrogate had no jurisdiction to adjudicate upon the validity of the release, and had permitted the defendant to intervene upon the accounting, notwithstanding the release upon the ground of want of jurisdiction; that the referee to whom the accounts were sent refused to admit the release upon the same ground. Held, that these facts entitled the plaintiff to come into a court of equity, and there seek repose, by calling on the defendant to disclose and set up the facts upon which, at this late day, he claims invalidity.</p>

<p>1. Criminal law—Manslaughter in second degree—Penal Code, § 193—What will justify conviction under.</p> <p>The defendant was convicted of manslaughter in the second degree. The elements of the crime were as follows: The defendant, a police officer, while dressed as a citizen, showing no insignia of office, and possessing no power authorizing arrest, called upon the victim of the crime charged to stop and upon his disregarding the command shot him, wounding him so that he died shortly after. There was nothing to lead the defendant to suppose that the man whom he shot had been guilty of the commission of any crime Held, that the circumstances were such as to justify a conviction of manslaughter in the second degree under Penal Code, § 193.</p> <p>2. Evidence—Error in the admission of testimony— How cured.</p> <p>Held, that error in the admission of incompetent testimony was cured by its being stricken out by the court.</p> <p>3. Charge to jury—Error in—How cured.</p> <p>Held, that a charge to the jury on a point, if erroneous, was cured, so far as concerned the defendant, by a subsequent charge on the same point in accordance with his request.</p> <p>4. Same—What is not error to refuse.</p> <p>The court refused to charge that if the defendant was in the discharge of lawful duty as a public officer, the killing was justifiable, and the jury must find a verdict of not guilty. Held, that the refusal so to charge was correct.</p>

<p>1. Criminal Law—Abduction—Penal Code, § 382—Charge—Jury. ■</p> <p>The indictment charged that the defendant did take, receive, employ, harbor, use, and did cause to be taken, received, employed, harbored and used one * * * under the age of sixteen years, for the purpose of prostitution. The court charged the jury, reading Penal Code, section 282, subdivision 1, and a portion of subdivision 2. Held, that this was proper, as the indictment and charge made it evident to the jury of what the defendant was accused.</p> <p>3. Same—Evidence—Improper admission of—When not sufficient to justify reversal of conviction.</p> <p>The admission of hearsay evidence of such a character as not to injure the defendant, will not justify a reversal of a conviction.</p> <p>S. Trial—Abduction—Evidence sufficient to justify conviction— Penal Code, §'283.</p> <p>It is provided by Penal Code, section 288, that no conviction can be had for abduction upon the testimony of the female abducted, unsupported by other evidence. Held, that the testimony of the female abducted, if corroborated as to the facts of the taking, receiving and employing, etc., for the purpose of prostitution, and as to the fact of her being within the ago prescribed by the statute, was sufficient to uphold a conviction.</p>

<p>1. Game—Prosecutions for penalties under Laws 1883, chap. 317 — Fund to indemnify county against expenses of.</p> <p>By Laws 1883, chap. 317, relative to protection of game, it is provided that all penalties for infraction of the game laws of the state shall be paid to the county treasurer, and that of all moneys thus paid into the county treasury over and above the amount necessary to reimburse the county for any outlays or expenses paid out by the county treasurer, and by the act, one half shall be paid to the state, and the other half to the game protector. Held, that this act had in view the creation of a fund for the in • damnification of the county against its costs, etc., which might be included in the actions brought to recover penalties under the act.</p> <p>2 Same—Expenses of prosecutions under Laws 1883, chap. 317—Who LIABLE FOR.</p> <p>Held, That the legislature had power to direct that a county in which game would be protected by the prosecutors authorized by the act should advance the necessary expenses, and look to the penalties for indemnification.</p>

Jus.tice Fish, November 22, 1887, striking out certain portions of the fourth paragraph of the answer herein as irrelevant. The action is brought against defendants as directors of a corporation, known as the Port Henry Steel and Iron Company, limited, to charge them with the debts of such corporations, by reason of its failure to file certain annual reports.

<p>1. Justice’s courts—Authority of attorney—What is sufficient proof OF.</p> <p>Where a person appeared, in a justice’s court, as the attorney of a corporation in an action on an account, upon which an indebtedness accrued in their favor, and there was present, at the time of such appearance, the manager of the corporation’s store, who was sworn as a witness, Held, that the authority of the attorney was sufficiently established, although he did not swear to the fact of his authority.</p> <p>2. Same—Default—Proceedings upon—Code Crv. Pro., § 2891—Limit of plaintiff’s case.</p> <p>Held, that by force of Code Civ. Pro., § 2891, the plaintiff was, upon the defendant’s default, required to prove its case, but that its corporate existence formed no part of the case, and it was not necessary that it should be established by proof.</p> <p>3. Same—Action by corporation—When proof of corporate existence necessary—Code Civ. Pro., 1775, 1776.</p> <p>Held, that by force of Code Civ. Pro., § 1775, a corporation, being an artificial body, must give a description of itself in its complaint, so that it might be identified, but Code Civ. Pro., § 1776, provides that this need not be proven unless put in issue.</p> <p>4. Same—Principles embodied in Code Crv. Pro. §§ 1775; 1776, apply to justice’s court.</p> <p>Held, That the principles embodied in Code Civil Procedure, §§ 1775, 1776, had application in justice’s courts, even if the express statute provisions did not extend thereto.</p> <p>5. Same—Appeal from judgment of—Regularity of proceedings presumed WHERE RECORD IS SILENT.</p> <p>Held, That on an appeal from a judgment rendered in a justice’s court upon a default, it would not be presumed that the justice did not wait an hour before proceeding to trial in the absence of any return upon that subject.</p> <p>6. Evidence—Action on account—Introduction of books of account— When failure to introduce is not ground of objection.</p> <p>Held, That the objection that the books of account of the corporation were not produced was not well taken, it not appearing that the sum total of the accounts which the defendant promised to pay was stated therein.</p> <p>7. Same—When statement of witnesses as to sum total of account is competent.</p> <p>Held, That it was not error to allow the manager of the corporation's store as a witness to state the sum total of the account.</p>

<p>Appeal from decree of surrogate admitting to probate the last will and testament of Harriet Gross, deceased.</p>

<p>1. Railroad—real property—Method op ascertaining damage to.</p> <p>In proceedings to acquire lands, for railroad purposes, the proper method of ascertaining damages for land taken is to ascertain the value of contiguous lands prior to the taking of the lands, and those subsequent thereto.</p> <p>3. Same—Proceedings to acquire _ or railroad purposes—Strict rules OP EVIDENCE NOT APPLICABLE.</p> <p>In such proceedings, the strict riñes of evidence are not to be enforced, and the determination of commissioners based not only on the evidence, but upon personal observation, will be upheld, if correct.</p> <p>3. Same—What the owners op land are not entitled to compensation por.</p> <p>When pending such proceedings the railroad company entered upon the land under a license, and laid a portion of their track, Meld, that the owners of the land were not entitled to compensation for the track thus laid.</p>

<p>1. Contract—What will not operate as assignment op.</p> <p>The statute permitting the filing of mechanics liens, does not give the person taking advantage of its provisions, a right to complete a contract of one to whom he sustains the relation of sub-contractor and who has defaulted in the performance of his obligation.</p> <p>2. Payment—Delivery op check is not—Evidence insotpicient to support pending op.</p> <p>The delivery of a check of a face value equal to the amount of a debt, does not discharge the debt, and where entries, which upon a payment of the debt and proof of the return of the check in the ordinary course of business are wanting, the assertion of the debtor that he has in fact paid it, will not be sufficient to support a finding to that effect.</p>

The plaintiff alleges in his complaint at folio 11, of case: “That on or about the 14th day of December, 1886, while the plaintiff was traveling in a buggy drawn by one horse along the public highway, being rightfully therein, near Dekalb Junction, St. Lawrence county, N. Y., at which place defendant’s railroad track crosses said highway, and when plaintiff was approaching said crossing, and about to pass over the same, the defendant, its employees and servants in charge of…

The action was brought to recover damages for alleged obstructions claimed to have been placed by defendants in plaintiff’s right of way.

<p>1. Conspiracy—Relevancy of acts and declaration of conspirators.</p> <p>When there is sufficient evidence of a conspiracy, between two or more persons, with a certain end in view, then the acts and declarations of each of the conspirators are regarded as the acts of the whole party, and are evidence against the whole party.</p> <p>2. Fraud—What is sufficient to constitute.</p> <p>This action was brought by a judgment-creditor, against trustees of a company, ,to recover of them the amount of the company’s indebtedness, on the ground that the company was organized in pursuance of a fraudulent conspiracy on the part of the defendant, to deceive the plaintiff and the public. Held, that to sustain a recovery, it was not necessary that any direct representation of a false or fraudulent character should have been made by the company or the defendant to the plaintiff in person, or that fraudulent intent on their part should have related to the plaintiff, or had in view a design to defraud him in particular; that if the design was to get such advantage of any person who might deal with them, then any such person actually injured, by them, might recover of any or all of the parties who set in motion the matters which produced that effect.</p> <p>3. Same—What proof competent to establish.</p> <p>Held, 'that fraud was capable of establishment only by proof of circumstances and surroundings, and that occurrences subsequent to the wrong complained of, were admissible in proof, not as showing that the party injured was deceived by such subsequent acts, but as exhibiting the true character of the whole line of action.</p> <p>•4. Same—Facts constituting.</p> <p>Held,, that to establish fraud on the part of the defendant, it was not necessary to show that it was his intention, or that of his associates in any event to defraud its customers, but that it was equally a fraud if they engaged in an enterprise with the intention of trying an experiment with the purpose of sharing the profits in case of success, and in case of its proving unprofitable, of allowing the loss to rest upon the creditors.</p>

<p>Contract—Right secured by—Provision of lessee—Entitles lessor to-EXACT COMPENSATION PROM THIRD PARTY FOR USE OF LEASED PROPERTY.</p> <p>The plaintiff leased to another party a farm with stock, afnong which was a mare, and subsequently by the consent of the latter party allowed the defendant’s intestate to use the mare. Held, that if any compensation was to be paid for the use of the mare, the plaintiff was entitled to it.</p>

<p>1. Costs—What costs can be granted by the court of appeals.</p> <p>Costs given by the court of appeals are only such as accrue in that court.</p> <p>3. Same—Circumstances under which opportunity to ask for will be, GRANTED.</p> <p>Where in an equitable action the plaintiff was defeated in the lower courts and so, previous to a favorable decision of the court of appeals, had no opportunity to ask an exercise of the discretionary power of the former court to grant him costs, Held, that after the rendering of that decision, opportunity should be granted him to ask for costs.</p>

00, on which judgment was entered in the county court of the county of Schenectady, •on the 24th day of May, 1887. This action originated in a justices’ court of Schenectady -county, October 2, 1886. The complaint is for trespasses committed on the respondent’s lands, by the appellant’s horses, cattle and sheep, and demands judgment for $150. The answer is a general denial. The cause was tried by a jury, October 25, 1886.

<p>Practice—Default in pleading—What necessary to entitle party to ORDER OPENING.</p> <p>Upon a motion, made by a defendant to open a judgment taken for default in pleading, the moving party made the ordinary affidavits of merits, and stated that ho had failed to answer the complaint, relying upon the representation of a co-defendant that the indebtedness for which the action was brought had been paid. He did not on the motion, state that it had been paid, nor make nor tender any answer. Held,, that in order to entitle himself to an order opening the default, it was necessary for him to show to the court clearly that he had a defense.</p>

<p>Collateral inheritance tax—Exemption of adopted children—Laws 1885, chap. 483, as amended by Laws 1887, chap. 713.</p> <p>The provisions of section 1, chapter 713. Laws 1887, exempting adopted children, from, the collateral inheritance tax, have no application to the v adopted children of decedents dying between June 30, 1885, and June 27, 1887. Upon a state of facts arising between the passage of the two acts, the law continues as though the act of 1887 had never been enacted.</p>

<p>Executors and administrators—Unsettled accounts—Power of surrogate TO COMPEL ADMINISTRATORS, ETC., TO ACCOUNT.</p> <p>The surrogate; on his own motion, has the power to compel the rendition of an intermediate account by an executor, administrator, guardian, or testamentary trustee, after eighteen months have expired since their appointment. Upon the filing of the intermediate account, the surrogate can compel the accounting party to submit to an examination, the same as if objections to the account had been filed and his accounts contested. The surrogate may punish such officer for failure to obey his decree to account etc., as for a contempt, or remove him, or both. The surrogate has power to appoint referees to take and report the evidence upon the facts.</p>

The defendant was jointly indicted with Nellie Wood and Maria Jahn for the crime of abortion. He demanded a separate trial, which was had on the 13th day of October, 1887, before Hon. Henry A. Moore and associates at the Kings county court of sessions. The defendant was duly convicted and sentenced.

<p>Appeal from a judgment in favor of defendant, entered at the Kings county circuit court, on the granting of a motion of defendant to dismiss the complaint.</p>

The action was commenced by summons and complaint, under chapter 414 of the Laws of 1881, and judgment was rendered on the default of defendant, without proof as provided in said act. The defendant claims that the justice did not have jurisdiction.

An action was commenced in favor of the above-named plaintiff against McHeal and others, on May 12, 1881, by the service of the summons and complaint. James Mackin and William S. Verplanck, as executors, etc., of John P. DeWint, deceased, were the only defendants who appeared therein. They appeared and answered the complaint.

<p>Wills—Construction of—Legacy—When it does not lapse.</p> <p>A testator made provision for the distribution of the income of his estate to his wife and children, until his youngest daughter should come of age, and until the decease of his wife, and devised and bequeathed the estate upon the happening of those events to his children, share and share alike, directing his executors to pay over the same to his children, except the share of one of his daughters, which in case she should be the wife of her present husband, he directed the executor to hold in trust and pay the income to her so long as she should so remain, and thereafter to pay the said share to her or her surviving issue. The will further provided, that in case of the decease of any of the testator’s children before receiving his. other share of the estate, it should go to his surviving children. Meld, That on the death of the daughter to whom reference is last made, before the youngest daughter of the testator attained her majority, her share did not go to the other" children of the testator, but to her surviving issue.</p>

<p>1. Trusts—A deposit in bank in trust for another is a declaration of trust—Such depositor is a trustee.</p> <p>Deposits were made in a bank in trust for the plaintiff’s testator, by her husband. Held, that such deposit was a declaration of trust and that the depositor held the title to the money deposited, as trustee.</p> <p>3. Same—Title to money deposited in trust—Executor of cestui que TRUST ENTITLED TO RECEIVE MONEY DEPOSITED IN TRUST FOR HIS TESTATOR.</p> <p>Held, that on the death of her husband, the plaintiff’s testator was the owner of the moneys deposited, and that on her death her executor was entitled to receive it.</p> <p>'3 Same—Payment to executor of depositor with notice is not DEFENSE TO ACTION BY TESTATOR OF CESTUI QUE TRUST.</p> <p>Held, that the fact that the bank had paid the amount deposited to the executor of the husband was no defense to an action by the executor of the cestui que trust, the bank having had at the time of payment notice of her claim.</p> <p>4 Action—Recovery of judgment against wrong person is not bar to AN ACTION BROUGHT AGAINST THE RIGHT PARTY.</p> <p>Held, that the fact that a judgment had been obtained by the executor of the cestui que trust against the executor of the depositor was no bar to this action.</p>

<p>Husband and wife—Conveyance—Validity of—When upheld as between parties.</p> <p>A conveyance was obtained from a wife by her husband at his solicitation. Held that it would not be set aside as obtained by fraudulent means where it appeared that the grantor acted understandingly in making it, although she was weak and in a highly nervous and excitable state at the time of its execution.</p>

<p>New trial—Motion for on ground of newly discovered evidence— Character of evidence requisite to obtain order.</p> <p>A motion for a new trial on the ground of newly discovered evidence, will not-be ••granted unless it appear that the evidence could not have been obtained with reasonable diligence on the former trial, that it -must not be-merely cumulative, and that it is so decisive in its character that there is a reasonable certainty that on another trial it would produce an opposite result.</p>

<p>Negligence—What must be shown to entitle to becoveby.</p> <p>In an action for damages for injuries alleged to have been caused by defendant’s negligence, it is not enough to send the case to the jury, to show that by some possibility the injury might have been caused by the negligence of the defendant. It must be shown that the defendant committed some negligent act or omitted some duty and that such act or omission caused the injury. WTiere the facts are as consistent with due care as with the want of it, no recovery can be had.</p>

<p>1. Awabd of commissionbbs appointed to assess value of land—When final—Laws, 1877, chap. 445</p> <p>Unless the commissioners appointed under Laws 1877, chapter 445, and the acts amendatory thereof, in making awards for the property taken under said act adopted some erroneous principle, or the award is grossly inadequate and unequal, their determination is final.</p> <p>2. Same—Must appear affirmatively that commissioners erred.</p> <p>It is not sufficient to show that the commissioners may have acted upon an erroneous principle, it must appear affirmatively that they did so act.</p> <p>3. Same—Presumption in favor of correctness of award of commissioners.</p> <p>An award hy said commissioners, like a judgment, will be sustained by presuming that facts sufficient to sustain it were found by the commissioners in case there was evidence before them to warrant such finding.</p> <p>4. Same—Costs not allowed to property owners.</p> <p>There is no authority in the statute for awarding costs to property owners.</p>

<p>Appeal from a judgment entered on a decision rendered at special term, reducing the assessments of the lands of the relators as fixed by the assessors, and awarding costs against them personally to the amount of upwards of $500.</p>

of contributory negligence on the part of the plaintiff at the trial thereof, at the Rockland county circuit, before a jury.

<p>1. Master and servant—Action for damages for injuries received by servant—Negligence—When a question for jury.</p> <p>When an employer has laid down a rule to be observed by his employes for their safety in the use of machinery in their work, but the rule is necessarily violated in its accomplishment, in an action brought to recover damages for injuries received by the employe, it is a question for the jury whether under all the circumstances such violation is negligence.</p> <p>2. Same—Negligence—When for jury to consider.</p> <p>When, in such an action, it appears that the employe had either to stop work or act in violation of the rule, it is for the jury to say whether such an act is negligent.</p>

The defendant is the administrator of the estate of Emma L. Burrell (his .mother), deceased, and, with a brother, are her only children and heirs-at-law. He was appointed administrator about June 8, 1885. She left no property other than the house No. 58 Cheever Place, Brooklyn, worth about $5,000, upon which there is a mortgage overdue of $3,500.

<p>Appeal from an order of the surrogate of Westchester county, dated March 4, 1887, denying an application of Agnes Hall for an order directing Jane E. Kelemen, the respondent, to pay to the petitioner the sum of $11,188.23, with interest from the 2d day of May, 1877, and for other relief.</p> <p>Abigail Hall died intestate, leaving the respondent and six children of a deceased daughter (among whom was this petitioner), as her only heirs-at-law and next of kin. Mrs. Kelemen associated with her John W. Mills, her mother’s counsel, in the administration of the estate, June 20, 1872. The bulk of the estate was the interest of Abigail Hall in the estate of her husband James Hall. John W. Mills received all the moneys due to the estate, and at all times had them under his exclusive control; this respondent having taken no active part in the administration. The final accounting of said administrators was had before the surrogate of Westchester county on their application presented in October, 1873, to which proceeding this petitioner was a party, and the decree of settlement was made, dated May 2, 1877. A special guardian for the petitioner (then a minor), was duly appointed and appeared for her therein. The account presented, shows “ balance in hands of administrator, to be distributed to those entitled thereto hereinafter stated, $36,280.03;” on the application of Charles A. Hall, the said decree was amended as relating to him, by order of the surrogate, February 24, 1882, granted by default. Mrs. Kelemen moved to open the default, but the motion was denied on the ground of loches. John W. Mills represented himself to be the general guardian, of the petitioner at the time of the decree in 1877, and all parties to the accounting acted upon the belief that such was the fact. Mrs. Kelemen then and always fully believed that he was such general guardian, and on inquiry of the surrogate of Oneida county, in October, 1880, was reassured in such belief by his certificate of the appointment of said Mills as her guardian, on Decernher 19, 1873. It now appears that he was not in fact such guardian.</p>

<p>Venue—Place of trial—Motion to change—When denied.</p> <p>A motion tor a change of the place of trial should be denied where it is not shown that,the witnesses, claimed to be accommodated by the change, are more numerous than those to whom the present place is most convenient.</p>

Justice Dykman, at special term. This is an action to restrain the defendant from trespassing upon and making unlawful possession of certain premises leased by the defendant to the plaintiff. The facts are as follows: On the 27th day of February, 1886, the plaintiff' leased of the defendant certain premises for the term of three years, to begin from the first day of April, 1886.

<p>1, Contract—Measure of damages for breach of.</p> <p>Where a contract provided that the defendant should buy certain articles of the plaintiff at a stated price, Meld, that the plaintiff having fully performed his part of the contract, was entitled to recover the full contract-price.</p> <p>2. Same—Adjustment of damages for breach of.</p> <p>Reid, that an agreement having been made between the parties that on disposing of all of the articles as provided for in the contract, the defendant should receive a sum of money, he was entitled to that sum upon the recovery of the contract-price by the plaintiff.</p>

<p>Mortgage—Bill of sale wher operative as a mortgage.</p> <p>A bill of sale made to a party" to secure a debt, and with the agreement that all of the proceeds of the property over and above the amount of the debt, shall be placed at the disposal of the party by whom the bill is made, and his creditors, is not an assignment under our assignment laws, but merely a mortgage, and is not fraudulent as against other creditors of the debtor.</p>

<p>Master and servant—When not entitled to recover for injuries RECEIVED IN EMPLOYMENT.</p> <p>A servant is not entitled to recover damages of his master for injuries received hy him in the course of his employment, through a defect in the provision made for his pursuit thereof, where he has knowledge equal, or superior, to that of his master regarding the risks attendant upon the work.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial on the minutes, and defendant’s motion to set aside the verdict.</p>

<p>Usury—Conveyance made to operate as mortgage to secure usurious loan.</p> <p>Where a party conveyed land to another hy a deed intended to operate as a mortgage, to secure payment of a usurious loan and he subsequently created title in another having knowledge of the agreement. Held, that the mortgagor was entitled to recover of those parties, all sums received by them as proceeds of the sale of the property or as rent therefor, with interest from the time of their receipt.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, rendered at the Kings county circuit court, and from an order denying a motion made by the defendant for a new trial, and to set aside the verdict, on all the grounds stated in Code Civil Procedure, § 999.</p>

The action was brought by the plaintiff against the defendant to recover damages for alleged malicious prosecution of the plaintiff by the defendant. The complaint sets up two distinct causes of action.

Appeal taken by the plaintiff from a judgment of the Orange county circuit, dismissing the complaint, and from an order denying plaintiff’s petition for a new trial on the minutes.

<p>1. Certiorari—Writ of—Chap. 457, Laws 1881—Code of Civil Procedure, § 3125.</p> <p>Chapter 457, Laws 1881, is not unconstitutional as embracing more than one subject. The provisions of this law are not necessarily inconsistent with section 2125, Code of Civil Procedure, but prescribe different limitations, special in character and of paramount authority when applicable.</p> <p>2. Brooklyn (city of}—Police—Dismissal of officer.</p> <p>Where a police officer, in the city of Brooklyn, is dismissed from the force after trial, if he desires to review the determination of the police commissioners, the writ of certiorari must be granted and served within thirty days after notice to him of such removal.</p>

<p>Criminal law—Adulterated food—What it must contain—Laws 1881, chap. 407.</p> <p>Food to be adulterated, within the meaning of the law, must contain poison, and this fact must be proved to sustain the charge. Section 7, requiring labels, does not apply to the ordinary articles of food, provided they are not injurious to health. Barnard, P. J. dissenting.</p>

<p>The action is for damages, and is brought by an employee against his employer, in this case a corporation, for negligence in not providing a suitable, safe and proper place on or in which to prosecute his work.</p> <p>On the 5th day of Augdst, 1886, Michael Roach, the plaintiff, was in the employ of the defendant as a day laborer. The defendant was erecting an iron building for Dick & Meyer, in Brooklyn. The gang of men doing the work were under the direction, charge, superintendance and control of a boss or foreman named Yerkes, who employed the plaintiff and who, moreover, employed and discharged the laborers constituting the gang working under him.</p> <p>The engineering and architectural department was under the general direction of one Lederly, who, at the time of the accident, was directing the architectural and engineering details of at least three buildings in New York and Brooklyn. He went from one building to another to perform his duties. A man named Cooper was secretary o£ the corporation.</p> <p>On the evening before the day on which the accident occurred, a platform, erected by the defendant for the purpose of placing a derrick to hoist iron columns, showed signs of giving away, so that Yerkes, the foreman, who-was present, ordered the men to quit work and come down from the platform so that it might be repaired by next morning.</p> <p>This was on August fourth. On the morning of the fifth, when the plaintiff came to his work, he was ordered by Yerkes to mount the platform and hoist the column, Yerkes telling, him that he had fixed it and that it was safe. Yerkes had been warned by a workman that it was still unsafe.</p> <p>Plaintiff did not hear the warning, and had no means of ascertaining whether the platform was safe or not. He was not a carpenter, and knew nothing of the construction of platforms.</p> <p>Plaintiff mounted the platform and began to turn the crank to hoist the column, as ordered by Yerkes. When the column was three or four inches from the ground the platform gave way and plaintiff was thrown to the ground and sustained the injuries complained of.</p> <p>For the purposes of the appeal the negligence of Yerkes is admitted, and the only contention is whether the negligence of Yerkes was the negligence of a fellow servant or the negligence of one standing in the place of the master.</p>

<p>Appeal from a judgment entered upon a verdict upon a trial had before Mr. Justice Cullen and a jury, and from an order denying a motion, made upon the minutes, for a new trial.</p>

<p>1. Gifts—Inter titos—Registry of bonds—Effect of.</p> <p>The testator called upon his brokers and directed them to buy certain bonds “for his daughter.” The bonds were registered in the name of “ Caroline B. Crawford ” by his instructions. After registry, they were deliTered to the testator, and at his death were found among his papers. Held, that under the rigid rule gOTerning gifts inter mros the title and possession of these bonds were transferred. After the registry, as to the company, the bonds belonged to Mrs. Crawford, and the title once passed, the possession of the bonds by the testator will be deemed the possession of his daughter.</p> <p>3. Executors and administrators—Testamentary witness—When entitled to double commission.</p> <p>When by the terms of the will, in the disposition of the property, there is a marked and definite time when the executorship ends and the trustee’s duty begins, a double commission should be allowed.</p>

<p>Appeal from an order made by Mr. Justice Brown at special term woich involves the right of the village of Walden to lay out a street or highway through and across the lands of the Walkill Valley Railroad Company used for depot purposes or otherwise.</p>

<p>Corporations—Cemeteries—Contracts which are ultra vires—when ENEORCEBLE.</p> <p>Where a corporation has entered into a contract which has been executed, though ultra vires, the corporation cannot avoid it for that reason.</p>

<p>1. Schools—Board of education—Union free schools—Chap. 555, Laws 1864, title 9—Power to purchase school site.</p> <p>A corporation formed under the general school law, Laws 1864, title 9, chap. 555, for the purposes of managing a union free school, l>as power to initiate the proceedings for a new site without the aid of the act of 1886.</p> <p>2. Same—Chapter 36, Laws 1886—Authority to employ brokers in THE PURCHASE.</p> <p>The authority of the plaintiff to expend the money to he raised under the act oi 1886, chapter 36, was abundant to authorize a broker’s commission in the purchase of the site, as a necessary and proper incident to the purchase.</p>

<p>Pleadings—Aaeehdmemts.</p> <p>It is a power, in the discretion of the court, to allow an amendment to a pleading, by striking out the prayer for equitable relief and inserting a demand for damages, thus changing the cause of action from one in equity to one at common law,</p>

The plaintiff claims that the defendant should be compelled to complete his purchase of certain real estate sold to him by the said plaintiff as administrator, etc., and pay over the balance of the purchase money, and the defendant resists the said claim, refuses to complete the purchase, and on his part seeks the return of the amount paid down at the time of the sale, on the ground that the plaintiff’s right to sell the said real estate is defective, and the power of sale…

The appeal here is from a judgment, dismissing the plaintiff’s complaint. The action was brought to recover $5,000 the amount insured on the life of Jesse D. Ingram, by a certificate, issued by the defendant to him May 2, 1881. Fannie M. Ingram, the plaintiff, was the beneficiary named in the certificate, and the wife of Jesse D. Ingram. The death of the insured occurred January 10 1886. This action was brought April 7, 1887.

<p>Appeal from a judgment entered in the supreme court, special term, in and for Westchester county, setting aside a certain quit-claim deed, given by the plaintiff to one Joseph Bellesheim, now deceased, upon premises in the-village of Mount Vernon, Westchester county, and ordering the defendants, the heirs-at-law and next of kin of Joseph Bellesheim, deceased, to convey all the right, title and interest in the said premises to the plaintiff.</p>

<p>An" appeal from an order made at the Kings county special term, to compel Frederick Mahnken, the purchaser at the sale in partition, to complete his purchase.</p> <p>Prior to the 31st day of July, 1885, Thomas F. Cornell and Stephen B. M. Cornell, claimed to be the owners as tenants in common of the lot and building thereon on the southwest corner of Ooenties slip and Water street, in the city of New York.</p> <p>Thomas F. Cornell died in the city of Brooklyn on the 31st day of July, 1885, leaving a last will and testament, and letters testamentary thereupon were issued by the surrogate of the county of Kings to Stephen B. M. Cornell, now deceased, and to the defendants, Mary A. Cornell, and Robert A. Davidson, and the two last named are the surviving executors of said will, and are still acting.</p> <p>The following is a copy of portions of the said will, relating to the question under discussion.</p> <p>“All the rest, residue and remainder of my estate,vboth real and personal, I give, devise and bequeath unto my executors hereinafter named, to have and to hold the same to, for and upon the following trusts, that is to say: That they sell and dispose of the same and convert it into money, and that they divide the sum thus realized into five equal parts, and that they invest one of said equal five parts for the use and benefit of my son, William R. Cornell, for and during his natural life, paying over to him the interest or income as the same shall be received ; and upon his death, then, that they pay over said fifth part to the child or children of my said son, William R. That they invest another of said five equal parts for the use and benefit of my son, Frederick M. Cornell, for and during his natural life, paying over the interest or income arising therefrom, to him, as the same shall be received; and upon the death of my said son, Frederick M., then that they pay over said fifth to the child or children of said son, Frederick M.”</p> <p>The eighth clause of the will contains power of sale, with discretionary power in the executory to sell and reads as follows: 1 ‘ Eighth. I give unto my said executors full power and authority to sell or dispose of any or all of the real estate of which I may die seized, either at public or private sale, and at such time or times as they in their judgment may deem for the best interest of my estate, and to make, execute and deliver good and sufficient deeds for the conveyance of the same to the purchasers thereof.</p> <p>Stephen B. M. Cornell died intestate on the 31st of January, 1887, leaving him surviving Ann L. Cornell, his widow, and the plaintiff in this action, William R. Cornell, and the defendants Frederick M. Cornell, Charles R. Cornell, Thos. D. Cornell and Emma T. L. Cornell, children of his deceased brother, Thomas F. Cornell.</p> <p>On the 10th day of March, 1887, this action was commenced to partition the said property, and the persons named in this action were the only persons named as defendants therein.</p> <p>On the 2d day of June, 1887, an interlocutory judgment was obtained in this court directing the sale of said property on the 29th day of June, 1887. On said last mentioned day Frederick Mahnken, the appellant herein, attended said sale and bid for said property $22,950, and paid to the referee ten per cent, on the bid, and also the sum of seventeen dollars auctioneer’s and exchange fees in accordance with the terms of said sale.</p> <p>On the 29th day of July, 1887, by the mutual consent of said Mahnken and the referee, the time to complete the purchase was extended to the 15th of August, and subsequently to the 29th day of August, 1887, when the said Mahnken appeared before the referee at his office, at the time and place designated, ready and prepared to receive a deed of said property, provided the referee could give him a good and marketable title to the same. That the said referee tendered a deed, and this purchaser thereupon filed with him the objections to the title.</p>

By this decree it- was determined that there still remained in the hands of the said executor and trustee the sum of $14,641.60 of principal and $7,275.01 of income to be accounted for. The executor and trustee appeals from said decree.

<p>Husband' and wife—Agreement between as to earnings—When en-forcible.</p> <p>The husband and wife entered into an agreement by the terms of which she was to have the income derived from the keeping of a boarder and also the management of the poultry. Held, that the income so derived belonged to her and formed a part of her separate estate.</p>

Appeal by defendants from a judgment rendered on the verdict of a jury in above action which was tried before Hon. J. F. Barnard, one of the justices of the court. The plaintiff claimed that while her intestate was engaged at work at shaft No. 3 of the new Groton aqueduct, he sustained injuries in consequence of the negligence of the defendants. This was denied by the defendants, and in addition it was claimed that plaintiff had been guilty of contributory negligence.

<p>Ejectment—Action foe—New trial—Scope of Code of Civil Procederé, § 1525.</p> <p>Section 1525, Code Civ. Pro., giving a new trial, on payment of costs and damages, is applicable to an action of ejectment, and includes only an action at law to recover possession of land strictly. It does not include actions in equity to set aside conveyances when the decree would establish or destroy a title to land.</p>

<p>S. What exempt as foreign capital brought into state for investment.</p>

<p>Practice—Referee’s findings of fact can be reviewed on appeal— Code Civ. Pro., § 1346, sued. 1.</p> <p>Where a judgment in an action tried before a referee has been entered upon his report, and an appeal taken under Code Civil Procedure, section 1346, subdivision 1, and this appeal is heard upon a case, the referee’s findings of fact cannot be reviewed unless it appears by the case that it. contains all the evidence, or all bearing upon the question of fact sought, to be reviewed.</p>

<p>1. Practice—Jurisdiction of county court—Objection to—When it MUST BE RAISED.</p> <p>The objection that a county court has not jurisdiction over the person of the defendant must be raised at the first opportunity, and is waived by his appearing in the action and pleading to the merits.</p> <p>2. Assignment for the benefit of creditors—Choses in action pass toASSIGNEE ON ACCEPTING AND ACKNOWLEDGEMENT THEREOF.</p> <p>A general assignee for the benefit of creditors, by virtue of the assignment and the acceptance thereof, after due acknowledgement, acquires title to the choses in action of the assignor.</p> <p>3. Pleading—Complaint—When there are sufficient allegations to ALLOW PROOF OF AGENCY.</p> <p>The complaint was for goods, wares and merchandise sold and delivered to various persons who were employed by defendant, in her boat and dry dock.” Held, that it was sufficiently broad to allow evidence tending to show that the defendant was the real party contracting with the plaintiff's assignor.</p>

<p>1. Guardian ad litem—Non-appointment of for infant plaintiff an" IRREGULARITY—CODE ClVIL PROCEDURE, § 469.</p> <p>The omission of an infant plaintiff to prosecute by guardian is not jurisdictional, but a mere irregularity. One may be appointed nunepro tune,, even on the trial of the action. Code of Civil Procedure, § 469.</p> <p>2. Negligence—Master and servant.</p> <p>The plaintiff, while working in defendant’s mine, was injured by the breaking of the draw-head of a car in which ore was being drawn from the mine. There was a conflict in the testimony as to whether the draw-head was defective, to the knowledge of defendant’s foreman, previous to the accident, and as to whether plaintiff was negligent. Feld, under the evidence, it was a fair question of fact for the jury, and that there was sufficient evidence to support the verdict.</p>

<p>Yenue—Action for penalty under fish and game law—Laws 1886, CHAP. 194.</p> <p>Where in an action brought under the fish and game laws of the state (Laws 1886, chapter 194) for the recovery of penalties for killing and having in possession wild deer or venison, it appeared that the offense was committed in Herkimer county, and that the defendant resided in said county. Held, that Herkimer county was the county in which the trial should take place.</p>

<p>■ Appeal from an order changing the place of trial from Oneida to Herkimer county.</p>

Action to recover for injuries sustained by plaintiff, a brakeman, while in the service of the defendant, on its trains running from Elmira to Buffalo, 1883. Plaintiff slipped upon a covering to a manhole,' while passing from the engine back upon the train to set brakes.

<p>Negligence—Railroad—Need not bind timber and lumber.</p> <p>It is not negligence for a railroad to carry on its cars unbound sticks of timber or lumber. So held in a case where a brakeman was injured by the tipping up of a stick of timber, on one of the defendant’s cars, while1 going to set a brake. Bushby v. N. 7., L. F. and W. B. B:, B1t Hun, 104, distinguished.</p>

<p>A. E. Woodruff, for app’lt; S. A. Emanuel, for resp’ts.</p>

<p>1. Corporations—Laws 1875, chap. 611—Liability op directors por failure to file annual report—Does not exist in favor of co-director or assignee of a co-director.</p> <p>This action was brought against the directors of a corporation organized under Laws 1875, chapter 611, to charge them with the statutory liability incurred for failure to file an annual report within twenty days after the 1st day of January, 1886. The complaint alleged that the company, on July 2, 1886, made its promissory note payable to its own order on October 2, 1886, and indorsed and delivered the same; that certain of the directors indorsed and delivered it before maturity to the plaintiff, and that it was not paid when due. It further alleged the incorporation of the plaintiff and the company and the failure on the part of the latter to file its annual report. Held, that no cause of action against a trustee or director of a corporation founded upon neglect to file an annual report could accrue to a co-trustee upon a debt of the corporation to him if he held office at the time of the default, and that the assignee of the claim of such delinquent co-trustee against the corporation succeeded to, ought to be no greater than those of his assignors.</p> <p>2. Same—Right to enforce liability exists in favor of a person PURCHASING WITHOUT NOTICE IN GOOD FAITH AND FOB VALUE A NOTE OF THE CORPORATION FROM A DIRECTOR THEREOF.</p> <p>Held, that the equities did not prevail against the holder of a promissory-note of the corporation who received it from a director for full value before maturity, without notice of the fact.</p> <p>3. Same —One purchasing in good faith and for value from a director A NOTE OF THE CORPORATION NEED NOT PROVE LACK OF NOTICE.</p> <p>Held, that the burden did not lie on the plaintiff to prove the want of such notice; that it was only where the maker of the note showed that it was obtained from him by fraud or duress that the holder would be required to show under what circumstances and for what value he became-holder.</p>

<p>Appeal from a judgment of the general term of the city-court, affirming a judgment entered on a verdict of a jury, and from an order denying motion for new trial.</p>

The defendant was at the times mentioned in the complaint in this action a director in the American Opera Company, limited, a domestic corporation organized under the limited liability act of 1875. The plaintiff is a judgment creditor of the said corporation in the amount of $145 04 with interest from January 29, 1887, that being the day when said judgment was recovered.

<p>I. Court or common pleas—Cannot review exercise oe discretion op TRIAL JUDGE O'P NEW YORK CITY COURT.</p> <p>An application for the adjournment of the trial of an action in the city . court'of New York city is addressed to the discretion of the trial judge. The exercise of that discretion may he reviewed by the general term of that court but not by the court of common pleas.</p> <p>2. Same—When it cannot reverse judgment op new York city court.</p> <p>The court of common pleas cannot reverse judgment of the city court of the city of New York on the ground that it is against the weight of evidence, there being some evidence to support the finding of the jury.</p>

<p>1. Foreclosure — Receiver of rents, etc.—Wren court mat appoint.</p> <p>The court may make a decree in foreclosure, when obtained, relate back to the time of the commencement of the action, and, where necessary for the security of the mortgage debt, appoint a receiver of the rents and profits accruing in the interval between the commencement of the action and final judgment.</p> <p>2. Same—Court will enforce contract as to when rent shall become SECURITY FOR.</p> <p>Where the parties have themselves agreed upon the time when the rents, issues and profits should become security for the debt, the court will enforce such contract unless it would be unconscionable to do so.</p>

<p>Elevated railroads—Abutting owners’ easement—Damages—What MAT BE RECOVERED—LIMITATION OE ACTION.</p> <p>In an action to obtain equitable relief for damages sustained by reason of the construction and operation of an elevated railroad in front of plaintiff’s premises, recovery may be had for loss of rental value, although during the whole period in question the owner was occupant of the premises, wherever it appears that the premises were rendered disagreeable and uncomfortable; and also damages for the value of so much of the easement as was taken by defendants, but the recovery must be confined to-the six years preceding the commencement of the action, together with the added damages to the time of the trial. The road may be restrained from further operation after a future day to be named, unless defendant buys the easement taken for the purposes of the road.</p>

<p>Eoeeclosube — Reeebee’s libe.</p> <p>„ Where, in an action to foreclose a mortgage, a referee was appointed, and in obedience to a special order of the court, expended money for publication of notice of the sale of the mortgaged property, et.c, Held, that he was entitled to payment of his expenses, incurred in carrying out the orders of the court, and neither the satisfaction of the mortgage or of the judgment could afEe.ct his rights.</p>

<p>1. New York—City of—Tenure of in streets nr use before conquest of New Netherland by English—Pearl Street — Dongan CHARTER.</p> <p>Pearl street, in the city of New-York, was in use osa public street prior to the conquest of the New Netherland by the English. The fee of said street, which went to the British crown, remained in the crown until the twenty-second day of April, 1686, when it passed therefrom by the Dongan charter. Said charter gave the streets of New York city to the Mayor, etc., "for the public use * * * of the inhabitants of Manhattan island, and to the travelers.” This grant was confirmed by the Montgomerie charter, and by various colonial and other laws. Held, that the tenure of the city in said street was not absolute, but was in trust for the purposes mentioned in the grant1 above referred to, and conferred no other right or title upon the city than was given by the street opening acts of 1691, 1787,-1801 and 1818.</p> <p>3. Same—Effect of street opening acts of 1691, 1787, 1801 and 1813.</p> <p>Held, that by these acts the state lost control over the fee of the street, and no longer has any power to change or to modify the existing state of facts without awarding compensation to those who may be damaged by the change.</p> <p>S. Same—Right of abutting owner in street under Laws 1813.</p> <p>Under the act of 1813, the abutting owner had an easement of light, air and access in and to that portion of the street in front of his premises. The taking of this right of light, etc., is a taking of private property, and cannot be done even for a public use without compensation.</p> <p>4. Same — Payment of assessment for improvement of street—Effect of.</p> <p>Where the owners of property have paid assessments for the improvement of the street on which the land is situated, such payment gives the said owners an easement in the street.</p> <p>5. Street—Right of owners to land lying on, to fee of street.</p> <p>The law infers that the owners of lands lying on a highway are the owners of the fee of the highway; that the rights of the public therein and thereto are no higher or other than those of a mere easement, and that the proprietors on each side own the soil in fee to the centre of the highway.</p> <p>6. Same—Effect of discontinuance of street.</p> <p>The discontinuance of a highway conveys nothing back to the adjacent owner. It simply authorizes him to resume the occupation of his land, discharged from the servitude to which it had been subjected. Citing Peek, v. Smith, 1 Conn., 126.</p> <p>7. Same—Presumption of ownership.</p> <p>Where load is found in the possession of a certain person, and then after a lapse of many years is found to be in the possession of his descendant, a presumption arises that such descendant has taken by deed or has inherited not only the particular piece of property that is in his possession but also all the easements pertaining to that property. Citing Fletcher v. Fuller, 120 U. S., 534.</p> <p>8. Same—Use of by elevated railroad not a use for street purpose.</p> <p>The use of streets for an elevated railroad is not a use of the street for street purposes.</p> <p>9. Same—Equitable relief—When granted.</p> <p>The fact that the plaintiffs used the defendant’s road is not a reason why they should not have equitable relief.</p> <p>j.0. Trust—When condition of can be changed—When rescinded.</p> <p>The consent of the trustee is not sufficient to change the conditions of his trust without the consent of the cestui que trust. The person who. created the trust cannot, without the .consent of the cestui que trust, revoke or rescind the trust.</p> <p>11. Nuisance—Acquiescence.</p> <p>A person complaining of a nuisance will not be deemed to have acquiesced in the nuisance because he did not obtain an injunction before the erection of the thing which is claimed to be a nuisance.</p>

<p>Ambassadors—Immunities of, from civil suits.</p> <p>The privilege of an ambassador gives immunity against all civil suits sought to be instituted against him in the courts of a friendly country, through which he is passing on his way to the scene of his diplomatic labors.</p>

<p>Appeal from order appointing receiver and compelling the defendant Remsen, as assignee, to pay over to him the moneys, chattels and real estate received by him as assignee.</p>

<p>Exceptions—Fixing of—Power to permit after regular time has ELAPSED, IS DISCRETIONARY WITH COURT.</p> <p>A court has power to permit exceptions to he filed after the time prescribed for that purpose, and the exercise of that power is one resting in its discretion: An appellate court will not review such action, unless the facts and circumstances warrant the conviction that the discretion has been abused.</p>

<p>Appeal from an order directing a division of this suit into two actions, and that Sidney De Kay be substituted as defendant in place of the sheriff, in one of such actions, and from an order denying a motion for the re-argument of such order, and from an order denying a motion for the resettlement of that order.</p>

<p>1. New trial—For newly discovered evidence—Cumulative evidence NOT SUFFICIENT TO SUSTAIN.</p> <p>The rule requiring the denial of a motion for a new trial because of newly discovered evidence, on the ground that such evidence is cumulative, does not rest on any just or solid foundation, and is not to he extended to cases not falling directly within its language.</p> <p>3. Same—For newly discovered evidence—When may be granted.</p> <p>That the newly discovered evidence may he properly termed cumulative it must he of the same quality and description as was given upon the trial, and an application made for a new trial oh the ground of newly discovered evidence, and not of thatmaterialtothe issue, if made with diligence, may properly he granted.</p>

<p>Appeal from, a judgment on the verdict of a jury directed by the court.</p>

<p>1. Trusts—Validity or—When not affected by that or preordino or SUBSEQUENT TRUSTS CREATED BY THE SAME INSTRUMENT.</p> <p>The plaintiff, one of the sons and heirs at-law of a testatrix, commenced this action for the partition of real property. To maintain the action, it was necessary to establish the invalidity of her will which was set forth in the complaint. The testatatrix, after making certain bequests, devised all the rest of her personal and all of her real property to her executors in trust, to collect the rents and profits therefrom, and pay over the same to her children, share and share alike, at such times, in such manner and amounts as her executors should deem prudent, for and during each of their natural lives, and after their decease to their respective wives or husbands during their lives, or until they should re-marry. Also, at such times and in such manner and amounts as her executors should deem most prudent, provided that if any child should die without issue and not leaving husband or wife, him or her surviving, then his or her share to go to the survivor or survivors, share and share alike. If any child should die leaving husband or wife, him or her surviving, th- n his or her share to go to the survivor or survivors, share and share alike, after the decease or re-marriage of said husband or wife. If any child should die leaving issue, said issue should represent their parent per stirpes and not pel- capita and receive their parent’s share of said rents and profits, after the decease or re-marriage of their father or mother, at such time, in such manner and amounts as her executor should deem most prudent, until they should attain their majority. It was objected by the plaintiff that the secondary trusts declared for the surviving husbands or wives of the children of the testatrix might include persons not in being at her decease, by extending and providing for a husband or wife surviving, after one or more husbands or wives of the same child had previously died, and were consequently void as against the statute of perpetuities. Held, that if this were so, it would not invalidate the trusts created by the will, for the benefit of the children of the testatrix, for their respective lives. That the trust for them was not joint, but a several one in favor of each one of the children, and dependent upon no preceding or subsequent trust, nor liable to be set aside, because of the invalidity of any provision creating such a trust.</p> <p>% Statute or perpetuities—Violation or—I-Iow obviated.</p> <p>Held, that a clause of the will empowering the executors at any time, when in their judgment it might be advisable to do so, to sell any or all of the personal or real property included under a trust created by a preceding clause, and to invest the proceeds, removed any objection, which might be taken to that trust, as against the statute of perpetuities, as there were constantly in existence during the continuance of the trust, persons having the power to convey and dispose of the title to the property.</p>

<p>Appeal from a judgment recovered on the verdict of a jury directed by the court..</p>

<p>1. Attachments—Liability of indemnitors on.</p> <p>Where several creditors, under separate levies, give indemnity bonds, an action cannot be maintained against any set of indemnitors for the value of the entire property seized. The recovery can only be, if at all, for the particular property applied on the process issued in favor of the party who is sued.</p> <p>3. Same—Jury—Error in refusal to charge.</p> <p>It is error to refuse to charge the jury that they have the right not to believe the testimony of any party to the action who is interested in the event, even though such witness is not contradicted by any express testimony. The jury have the right to reject or decline to give credit to the testimony of such witness.</p>

<p>Appeal from an interlocutory judgment sustaining demurrer to an amended complaint and an amended supplemental complaint.</p>

<p>Street railroad—Franchise prohibiting use of steam power to propel CARS DOES NOT PROHIBIT CABLE SYSTEM.</p> <p>The relator, a corporation created under and pursuant to the general railroad act, Laws 1850, chap. 140, derived their right to construct the railroad from a grant made pursuant to a resolution of the common council of the city of New York, passed in 1852. Said grant provided as follows: “ No steam power to be used on any part of the road for propelling cars.” The relator propose to propel its cars by the cable system, in which steam would be used outside the line of the road, for the ■purpose of turning a drum, thus communicating motion to a cable under the track, and by means of a grip in the car which seizes the cable, the motion is communicated to the car. Held, that said restriction does not prevent the relator from using the cable system.</p>

<p>Appeal from a judgment dismissing the plaintiff’s complaint.</p>

<p>Husband and wipe—Insurance (life)—Assignment of policy—Validity of.</p>

<p>Contract—Breach of—When proved.</p>

<p>Benefit society—False statements in application for membership— Jury—Province of.</p>

This appeal is taken from a judgment of the supreme court, entered in Dutchess county, and from an order denying motion for a new trial.

<p>Mortgagee—Payment of—When evidence insufficient.</p>

<p>CONTRACT TO PAY FOR SERVICES—WHEN PROVEN.</p>

The appeal is from a judgment upon the report of a referee, confirmed by an order made at the Kings county special term, such reference having been made under the statute with reference to disputed claims against estates.

<p>Limited divorce—When facts justify a decree of.</p>

<p>An action to foreclose a mechanics’ lien, filed to secure a balance of $700 remaining unpaid, and alleged to be due on a written builder’s contract to do the mason work on three houses in Mount Vernon, N. Y., in accordance with certain carefully drawn plans and specifications, for the sum of $1,600. The .third trial of this cause was held before Judge Dykman at special term.</p>

An appeal by the defendants from a judgment in favor of plaintiffs, entered in the office of the clerk of Kings county on the report of a referee appointed to hear and determine.

<p>Appeal from a judgment entered in favor of the plaintiff against the defendants upon a verdict by the jury, rendered at the Kings county circuit court, and from an order denying defendants’ motion for a new trial upon the judge’s minutes.</p>

<p>Insurance—Pire—Evidence of loss—What material.</p>

<p>Insurance (like)—Payment ok Premiums—Evidence.</p>

<p>Landlord and tenant—Complaint—When dismissal oe erroneous— Evidence.</p>

<p>Negligence—Evidence — Sufficiency of—When nonsuit properly denied.</p>

<p>Partition sale—Application op purchaser to be relieved.</p>

<p>Judgment—Stare decisis—Evidence.</p>

<p>Appeal from judgment in favor of defendants upon trial at special term.</p>

<p>Appeal from interlocutory j ffigment entered upon the trial of this action at special term.</p>

<p>Practice—Leave to pile exceptions to judgment.</p>

<p>Statute op limitations—When no bar to an action.</p>

<p>Statute op Limitations—When action barred by.</p>

<p>Appeal by both parties from judgment upon demurrer to certain defenses set up in defendant’s answer.</p>

<p>Residence is a question of intention.</p>

<p>Appeal from judgment of the special team setting aside assignment as made with intent to hinder, delay and defraud creditors.</p>

<p>Practice—Revivor of action when ordered.</p>

<p>Assignment for the benefit of creditors—When sustained.</p>

<p>Contract—Construction op.</p>

<p>Principal and agent—Right of principal under agent’s contract— When proof of oral contract allowed.</p>