Volume 141 — New York Reports

<p>In an action brought by the receiver of an" insolvent manufacturing corporation to set aside a transfer of property to defendant, made by the corporation in contemplation of insolvency, and so in violation of the statute (1 E. S. 603, § 4), and to compel payment of its value, the answer set up as a defense that subsequent to the transfer and before the appointment of plaintiff as receiver, third parties, under a judgment and execution against the corporation, sold the property as the property of the corporation, and so that plaintiff took no interest therein It appeared that the amount bid on the execution sale was one dollar, and such sale was made for that sum Held, that a finding was justified that the sale was made subject to the transfer.</p> <p>It did not appear that the sheriff ever made an actual levy under the execution, and at the time the sale was made the property was not present or within the view of those attending the sale. Held, that no valid sale was established.</p> <p>A sale of personal property upon execution affords no protection to a party defending under it, unless he shows, first, a levy, i e, such an exercise of right and dominion by the officer over the property as would subject him to an action of trespass by the owner if the levy was not justified, and second, a sale with the property actually present and within the view of the persons attending the sale-</p> <p>As to whether, even if a valid sale of the property upon execution had been shown, it would have constituted a defense in the absence of allegations connecting defendants with the title so obtained, quaere.</p>

This action was brought to recover rent for three months of certain premises in the city of Hew York leased by the plaintiffs to defendant. The latter set up as a defense an eviction and interposed a counterclaim for damages on account thereof. A verdict was directed in favor of plaintiffs and defendant’s exceptions ordered to be heard in the first instance at the General Term. The facts, so far as material, are set forth in the opinion.

Appeal by John A. Bryan from order of the General Term of the Supreme Court in the second judicial department, made February 13, 189'3, which affirmed an order of the surrogate of Westchester county, denying a motion to open and amend a decree, settling the accounts of the executors and trustees under the will of Henry B. Worthington, deceased. The facts, so far as material, are set forth in the opinion.

The nature of the action and the facts, so far as material, are set forth in the opinion. The court erred in refusing to dismiss the complaint. (L. I. F. Co. v. Terbell, 48 N. Y. 427.) The plaintiff is entitled to recover. (Smith v. L. I. R. R. Co., 102 N. Y. 190; Mather v. E. M. Co., 118 id. 629.)

The nature of the action and the facts, so far as material, are stated in the opinion. The duration of the trust is limited to two lives in being at the death of the testator, namely, those of Rachel and Addie Van Gilder, and upon their death the trust must terminate absolutely in every possible contingency.

Spooner, deceased. Dan E. Spooner died in 1871 while a resident of Steuben county in this state. He left a will which was duly admitted to probate in Steuben county in August, 1871. He nominated John McDougall as his executor, who duly qualified. He left a widow, a mother and a brother surviving him.

The nature of the action, and the facts, so far as material, are set forth in the opinion. The action will lie. (Code Civ. Pro. § 1866; Anderson v. Anderson, 112 N. Y. 112; Adams v. Becker, 47 Hun, 66; Drake v. Drake, 41 id. 366, 872 ; 134 N. Y. 220; Read v. Williams, 125 id. 566.) Issue in this will means children.

This action was brought to set aside a release executed by plaintiff of his interest in the estate of Isaac E. Haviland,. deceased, and for an accounting by the administrators with the will annexed of said Haviland, and a determination of the amount due pMntiff as his legatee, heir at law and next of kin, and such other and further relief as might be just and proper.

This action was brought against defendant, as sheriff of the city and county of New York, to recover the amount of a check given by one Horace J. Adams to take the place of certain property levied upon by defendant by virtue of an attachment obtained in an action brought by plaintiffs against the Illustrated News Company. The facts, so far as material, are set forth in the opinion.

<p>C., a widow, died leaving a son ten years of age her sole heir and next of kin. Her will, after some trifling bequests, contained this clause: “I will and bequeath to John E. Lee all debts, dues and demands of name, nature and kind soever I hold against him and his wife, my trunk and any keepsakes he may wish.” The residue of her estate she gave to her son, to be invested by a guardian provided for, and the interest used for the education and support of her son. Mrs. Lee owed to the testatrix §53-upon a chattel mortgage on “ saloon furniture,” and §170 on what was called a chattel lien executed by her on certain horses in her possession.</p> <p>. and used by her husband as her agent. The testatrix also owned a bond and mortgage of $1,363, executed by Mrs. Lee on the purchase by her of the land mortgaged; her husband joined in the bond. This land Mrs. Lee bad sold previous to the execution of the will, conveying the same by warranty deed clear of incumbrance. The purchaser,, however, retained the amount of the bond and mortgage and paid only the-balance of the purchase money. This was known to the testatrix when she executed the will. The estate of the testatrix netted for distribution less than $6,000. After her death, by direction of Lee, who was the executor of the will, the purchaser of said land handed to Mrs. Lee the part of the purchase money so retained, who at the same time paid it over to the executor and received a discharge of the mortgage. Held,, that the bequest to Lee did not include said bond and mortgage.</p>

<p>Appeal from order of the General Term, of the Supreme Court in the fourth judicial department, entered upon an order made February 7, 1893, which affirmed a judgment in favor of defendants entered upon an order of Special Term confirming the report of a referee, dismissing a claim presented by plaintiff to defendants, as the administrators of Job Holmes, deceased.</p> <p>The facts, so far as material, are set forth in the opinion.</p> <p>The note was given by the intestate directly to Jerome D. Holmes, the plaintiff. The note itself imported consideration, and made a prima facie case. (Carnwright v. Gray, 127 N. Y. 92; Price v. Craft, 12 Johns. 91; Hughes v. Wheeler, 8 Cow. 83; Butler v. Rawson, 1 Den. 106.) For the purpose of establishing want of consideration the defendants, under the objections and exceptions of the plaintiff, proved declarations and admissions-of Rufus Holmes upon that question, which declarations were made about January 25, 1885, months after the original note-had been given, and months after Rufus Holmes had ceased to have any interest whatever in it. This was error. (Code Civ. Pro. § 829 ; Christie v. Bishop, 1 Barb. Ch. 115 ; Hurd v. West, 7 Cow. 752; Beach v. Wise, 1 Hill, 612; Brisbane v. Pratt, 4 Den. 64; Van Gelder v. Van Gelder, 81 N. Y. 625 ; Hutchins v. Hutchins, 98 id. 64; Paige v. Cagwin, 7 Hill, 368; Greenl. on Ev. § 190.) There was an effort to prove the-declarations of Rufus Holmes -in the spring of 1883, before the note was given. These declarations were equally incompetent. (Hutchins v. Hutchins, 98 N. Y. 64.)</p> <p>Declarations byn Rufus Holmes at a time prior to the date of the note were competent to impeach the consideration of the note. (Millenery v. Lucas, 3 Hun, 496 ; Code Civ. Pro. § 723; 12 Wend. 47; 55 Barb. 589; Paige v. Cagwin, 7 Hill, 379; Von Sachs v. Kretz, 72 N. Y. 553.)</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made-the first Monday of December, 1892, which affirmed a judgment in favor of plaintiffs entered upon a verdict and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought by plaintiffs, who were stock brokers, to recover a loss incurred by them on a sale of' 100 shares of Chicago and Northwest common, and 100 shares-of Ohio Southern stock, which they claimed to have purchased and carried for defendant on a margin.</p> <p>The complaint alleged, and it appeared, that on September 80,1884, defendant deposited with plaintiffs as a margin $200, and requested them to purchase for him 100 shares of Ohio Southern railroad stock; that on October 3, 1884, they purchased said stock at the market price, which, with theil* commissions, amounted to $1,100; that on October 7,1884, defendant deposited $200 more with plaintiffs and requested them to purchase for him 100 shares of the Chicago and Northwest railroad stock; that on October 8, 1884, plaintiffs purchased the same at the market price, which, with their commissions, amounted'to $9,350 ; that defendant gave no orders to plaintiffs as to how long he wished them to carry said stocks; that the Chicago and Northwest stock having fallen in price so that the $200 and $500 besides were lost, plaintiffs, on October nineteenth, sold it for $8,575. On or about December first plaintiffs rendered to defendant an account with interest .adjusted as of November thirtieth, showing the sale and a balance then due of $1,505.08, with 100 shares of Ohio .Southern stock on hand, worth about $950, and requested defendant to make good the deficiency by remitting to them .$500 or $600 in cash ; that defendant having failed to do so, ■on January 17, 1885, they sent him notice in writing that if he did not pay them $500 on account of said deficiency before January twenty-eighth they would close out the account by the sale of said stock.</p> <p>Defendant having failed to comply with their demand, plaintiffs sold the Ohio Southern stock, and a judgment was demanded for the balance due plaintiffs on the account.</p> <p>The further material facts are stated in the opinion.</p> <p>The plaintiffs having acted in disregard of the obligations of their contract with the defendant, could not recover under the allegations of their complaint. (Gillett v. Whiting, 120 N. Y. 404.) There was no proof of ratification and no sufficient evidence to go to the jury upon that question. (Gillett v. Whiting, 120 N. Y. 406 ; Stillwell v. M. L. Ins. Co., 72 id. 302; Whitney v. Martew, 88 id. 540.) The court erred in restricting the defendant’s right of cross-examination of the witness Gillett.</p> <p>The court instructed the jury that such sale was unauthorized and constituted a conversion of this stock, and then instructed the jury that if after the stock was sold and after defendant had a knowledge of the whole transaction he promised to pay this account, that plaintiffs were entitled to recover. This was correct. (Gillett v. Whiting, 120 N. Y. 406.) It was not necessary for defendant to know the legal effect of his promise to pay this loss. (C. Bank v. Warren, 15 N. Y. 577; Hyatt v. Clark, 118 id. 567; Hazard v. Spears, 2 Abb. Ct. App. Dec. 353; Story on Agency, §§ 239-243; De Freest v. Warner, 98 N. Y. 217; Way v. Sperry, 6 Cush. 238.)</p>

This action was brought to recover upon a claim for work, labor and services alleged to have been rendered by plaintiff for Eobert Sherman, defendants’ testator, during a period of. thirty-eight years. The facts, so far as material, are stated in the opinion. Satisfaction of the-debt by the legacies given plaintiff in decedent’s will is not pleaded as a defense.

This was a motion for an order directing the former attorneys of the relator to deliver to her present attorney certain qiapers.

<p>Where a party has obtained an undue advantage by using an order of the court for a purpose contrary to its spirit and intention, and which could and would have been guarded against had the unlawful purpose been disclosed when the order was made, the court has power to modify or amend the order, or grant a new order, to correct the abuse of the former one.</p> <p>This court may not review even a void order in an action when it does not affect a substantial right.</p> <p>After judgment in an action of ejectment an order was granted under the Code of Civil Procedure (§ 1535), setting aside the judgment and granting a new'trial. Subsequently, on motion of defendant, an order was granted setting aside said prior order, amending and modifying the judgment and execution, with leave to apply again for leave to vacate the amended judgment for the purposes of a new trial, but refusing to set aside the execution, under whicli plaintiff had been put in possession. On appeal from the order, held, that it was one addressed to the discretion of the court below and so was not reviewable here. (Code Civ. Pro. § 190.)</p> <p>After defendant had secured the amendment to the judgment and execution he again resumed possession of the premises and excluded plaintiff therefrom by force. Upon application of the latter, defendant was ordered forthwith to restore such possession, and thereafter to desist from any physical resistance or interference with plaintiff’s possession. Held, that the making of the order was within the power of the court; that plaintiff was not required to resort to some new and independent action or proceeding to regain possession.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 28, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiff, as trustee, to recover of Augustus T. Post the sum of $25,000 alleged to have been placed in his hands to be loaned for plaintiff and to be returned on demand. After the death of Post the action was revived and continued against his administratrix.</p> <p>The facts, so far as material, are set forth in the opinion.</p> <p>Mr. .Post acted only as Mr. Isham’s agent in the whole matter of loaning the $25,000 referred to in'the complaint, and in all that he did Mr. Post acted within the scope and intention of his employment as agent. (Lambert v. Heath, 15 M. & W. 484; Peckham v. Ketchum, 5 Bosw. 506.) The $25,000 delivered by Isham to Post was not chargeable with any trust in Mr. Post’s hands. (Atty.-Gen. v. L. Ins. Co., 71 N. Y. 325 ; Risley v. P. Bank, 83 id. 324; O'Connor v. M. Bank, 124 id. 331; Gerard v. McCormick, 130 id. 267; Duncan v. Jordan, 15 Wall. 255; Shaw v. Spencer, 100 Mass. 382; M. N. Bank v. Hall, 83 N. Y. 338.) Mr. Post was responsible in any event only for ordinary care and liable only for gross negligence. (Story on Bail. §§-179, 180-183 ; Shiels v. Blackburne, 1 H. Black. 158; Beardsley v. Richardson, 11 Wend. 25; Tompkins v. Saltmarsh, 14 S. & R. 275; Finnucane v. Small, 1 Esp. 315; Foster v. E. C. Bank, 17 Mass. 478.) The exercise of ordinary care did not require Mr. Post to verify these certificates at the office of the company. (Lamb v. C. & A. R. R. Co., 46 N. Y. 279 ; Leitch v. Wells, 48 id. 585 ; N. Y. & N. H. R. R. v. Schuyler, 34 id. 30; McNeil v. Bank, 46 id., 325; F. A. Bank v. R. R. Co., 137 id. 231; Bank v. Lanier, 11 Wall. 377.) The acceptance of the certificates in question as collateral for Mr. Isham’s loan was not negligence on Mr. Post’s part. (White v. C. Bank, 64 N. Y. 316.) Any presumption of negligence on the part of Mr. Post is rebutted by the fact that he treated Isham’s money in the same way as he did his own. (Jones on Bail. 63; Story on Bail. § 183; Shiels v. Blackburne, 1 H. Black. 159, 1789; Finnucane v. Small, 1 Esp. 315, 1794; Foster v. E. C. Bank, 17 Mass. 478.) Mr. Post is not liable because he expressly exempted himself from liability by specific agreement to that effect with Mr. Isham at the time he undertook the loan. (Story on Bail. [9th ed.] 166 ; Loeb v. Heilman, 83 N. Y. 601; Bell v. Dagg, 60 id. 530.) Of the seven certificates four were genuine in every respect, and the forgery in the other three was not apparent. It had escaped detection for years. Moreover, the forgery was not of' any signature, but was an' alteration of the body of the -instrument, after it had been issued, which Mr. Post was neither'expected nor' bound to'discover. (Bank of Commerce v. U. Bank, 3 N. Y. 230; White v. C. Bank, 64 id. 316.) Mr. Post, as a gratuitous bailee, was not a guarantor. He had, in addition, expressly stipulated to the contrary. (Bell v. Dagg, 60 N. Y. 530.)</p> <p>The rule is well settled and inflexible that in all dealings in negotiable securities there is an implied warranty on the part of the one proffering them, whoever he may be, as a part of the agreement, that such securities are genuine and not forged. (Delaware Bank v. Davis, 20 N. Y. 228, 229 ; Littauer v. Goldman, 72 id. 506; Webb v. Odell, 49 id. 583 ; M. N. Bank v. Gallaudet, 120 id. 303; Goddard v. M. Bank, 4 id. 147-152; Welsh v. G. A. Bank, 73 id. 424-426; Weisser v. Dennison, 10 id. 75; N. P. Bank v. N. N. Bank, 46 id. 77-80; Turnbull v. Bowyer, 40 id. 450-460; Otis v. Cullum, 2 Otto, 447; Osborn v. Nicholson, 13 Wall. 654.) If the transaction be viewed, as a loan made by Post for the account of the plaintiff as principal, the same rale applies. Moreover, so long as Mr. Post conducted the transaction in his own name, without giving up or disclosing his principal, or securing his adoption of the loan, he made himself debtor to the trust estate and took the risks of the transaction. (Morrison v. Currie, 4 Duer, 79; Holt v. Ross, 54 N. Y. 478 ; Bank of Commerce v. U. Bank, 3 id. 230; K. Bank v. Eltings, 40 id. 391, 396; Frank v. Lanier, 91 id. 112; G. Bank v. S. Bank, 17 Mass. 33, 41; U. S. Bank v. Bank of Georgia, 10 Wheat. 351.) Upon defendant’s claim that Mr. Post’.i only liability was for negligence in the course of his agency, the plaintiff’s case is made out unanswerably by the proofs. (Whitney v. Martine, 88 N. Y. 535 ; G. Bank v. S. Bank, 17 Mass. 33 ; Bank of Commerce v. U. Bank, 3 N. Y. 236; Gerard v. McCormick, 130 id. 267; Shaw v. Spencer, 100 Mass. 382; Gibson v. N. P. Bank, 98 N. Y. 94; Fellows v. Longyor, 91 id. 324.) Upon the notice imparted by the check and the two accounts kept by defendant, one with plaintiff individually and one with him as trustee, defendant’s intestate was chargeable with knowledge that he had absolutely no right to loan these trust moneys upon such securities as he accepted without the written consent of the cestuis que tru$t, and that he did so at his peril. (Gerard v. McCormick, 130 N. Y. 267, 268; Sturtevant v. Jacques, 14 Allen, 523; Shaw v. Spencer, 100 Mass. 382; Budd v. Munroe, 18 Hun, 316; Brewster v. Lime, 42 Cal. 139; Thompson v. Toland, 48 id. 99.) The judgment appealed from must be sustained for the reason, not adopted by the court, but fully sustained by the conceded and undisputable facts of the case (some of which have been found and some not), that the loan in question was not a lawful use or investment of trust moneys, but a wrongful and illegal use thereof on the part of Augustus T. Post. (Gerard v. McCormick, 130 N. Y. 267; C. Bank v. Delano, 48 id. 340 ; Williamson v. Brovin, 15 id. 354; Baker v. Bliss, 39 id. 70 ; Bridgman v. Gill, 24 Beav. 302, 306 ; Fellows v. Longyor, 91 N. Y. 331; Budd v. Munroe, 18 Hun, 316, 318 ; Holden v. N. Y. & E. Bank, 72 N. Y. 294 ; Boddenham v. Hoskins, 2 De G., M. & G. 903; Foxton v. M. Bank, 44 L. R. L. S. 406-408; Atty.-Gen. v. Leicester, 7 Beav. 176, 180; Deobold v. Oppermann, 111 N. Y. 538.) The claim of the defense that the transaction in question was a gratuitous bailment and that, as gratuitous bailee, defendant’s intestate was only liable for gross negligence, cannot be sustained either as matter of law or as matter of fact. (Andrews v. Richmond, 34 Hun, 16-23 ; Mallory v. Willis, 4 N. Y. 76; Foster v. Pettibone, 7 id. 433; Doorman v. Jenkins, 2 Ad. & El. 256 ; Deobold v. Oppermann, 111 N. Y. 532.) if one of the exceptions were well taken. All of the rejected testimony was immaterial in any view of the case and especially in view of the decision made. (Hun v. Carey, 88 N. Y. 66 ; Hopper v. Sage, 112 id. 530 ; Watts v. Bailey, 49 id. 464, 472; Harris v. Tumbridge, 83 id. 92; Gerard v. McCormick, 130 id. 267; Shaw v. Spencer, 100 Mass. 382.) The complaint in the suit was properly dismissed, and it is only in the view of defendant’s liability that its discussion is of any importance. (Sherman v. Wright, 49 N. Y. 227, 231; Fellows v. Longyor, 91 id. 324, 330; 2 Perry on Trusts, §§ 811, 843; Kowing v. Manly, 49 N. Y. 202; Deobold v. Opperman, 111 id. 538; Code Civ. Pro. § 449 ; Donnelly v. West, 17 Hun, 568; W. R. R. Co. v. Nolan, 48 N. Y. 513; Holden v. N. Y. & S. Bank, 72 id. 297.)</p> <p>Post had notice that Isham was a trustee using trust funds, and was bound to ascertain what the trust was at his peril. (Fellows v. Longyor, 91 N. Y. 324; Shaw v. Spencer, 100 Mass. 382; F. N. Bank v. Lange, 21 Md. 138.)</p>

.Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made Rovember 21, 1893, which affirmed an order of a justice of the Supreme Court, made at Chambers, striking the name of Matilda Joslyn Gage from the registry list of the third election district of the town of Manlius, Onondaga county. The facts, so far as material, are set forth in the opinion. The order appealed from involves a substantial right.

The facts, so far - as material, are stated in the- opinion. The relator- is. organized! under the laws of the state of New Jersey, and-, that state is,, therefore, its domicile, and it is a non-resident. (Laws of 1855, chap. 37; People v. McLean, 80 N. Y. 259 ; B. C. L. Ins.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made December 5, 1893, which affirmed an order of Special Term denying a motion by plaintiffs for a temporary injunction.</p> <p>In the General Term it was adjudged, as the ground for the affirmance, that chapter 169, Laws of 1877, was constitutional, has not been repealed and authorizes the comptroller of the city of Brooklyn to pay to defendant, the Inebriates’ Home of Kings county, fifteen per cent of the moneys collected after April 1, 1877, for licenses. ' :</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order is appeal-able to this court. (Birge v. B. B. Co., 133 N. Y. 477; Anderson v. Anderson, 112 id. 104; T. Co. v. R. R. Co., 121 id. 397.) Chapter 169 of the Laws of 1877 was repealed by chapter 583 of the Laws of 1888. (Ferguson v. Ross, 126 N. Y. 465 ; People ex rel. v. Allen, 42 id. 417; Shepherd's Fold v. Mayor, etc., 96 id. 137; People ex rel. v. Ingersoll, 58 id. 1; People v. Wilmerding, 136 id. 368 ; Ellis v. Paige, 1 Pick. 43; Bartlett v. King, 12 Mass. 537; Butler v. Russell, 3 Cliff. 251; Patterson v. Tatum, 3 Sawyer, 164; In re Southworth, 5 Hun, 55; Bowen v. United States, 14 U. S. Ct. of Cl. 162; Laws of 1886, chap. 626.) Section 4 of chapter 169 of the Laws of 1877 is'a nullity and is void. (Laws of 1877, chap. 687, § 1; Laws of 1875, chap. 627, § 3; People v. Wilmerding, 136 N. Y. 368.) The provisions of chapter 169 of the Laws of 1877, which direct payment to the Inebriates’ Home of fifteen per cent of the Brooklyn city excise moneys, are in violation of article 8, section 11, of the State Constitution. (People ex rel. v. Brown, 55 N. Y. 187; People ex rel. v. Allen, 42 id. 404; People ex rel. v. Dayton, 55 id. 367; People ex rel. v. Jackson, 85 id. 544; People v. Purdy, 4 Hill, 384; Gordon v. Cornes, 47 N. Y. 616; Hequembourg v. City of Dunkirk, 49 Hun, 550; People ex rel. v. Kelly, 76 N. Y. 475 ; In re Mayor, etc., 99 id. 589 ; People v. Ingersoll, 58 id. 1; People v. Field, Id. 491; Shepherd's Fold v. Mayor, 96 id. 137; People ex rel. v. City of Rome, 136 id. 496.)</p> <p>It is contended that the various acts incorporating and providing for this institution are all of them general and not local laws. In construing as to whether legislation is to he deemed local or general, the fact that the principal operation of the act is confined simply to one locality of the state does not of itself make the act a local act, but, in order to be local, its operation, effect and purpose must be entirely confined to the property and persons of a specific locality. (People v. O’Brien, 38 N. Y. 184; Healy v. Dudley, 5 Lans. 120 ; Ferguson v. Ross, 126 N. Y. 459 People v. Stevens, 2 Abb. Pr. [N. S.] 351; People v. Bd. Suprs., 43 N. Y. 21; People v. N. P. R. Co., 86 id. 7.) Assuming that the various acts under consideration are local acts, they are not repealed by the provisions of the charter of the city of Brooklyn. (People ex rel. v. Bell, 125 N. Y. 722.) This act does not interfere with the provision of the Constitution in relation to the payment of money by any city. (Shepherd's Fold v. Mayor, etc., 96 N. Y. 137.) Should it be held that the act of 1887 was a local one it does not interfere with the constitutional prohibition. (People v. Briggs, 50 N. Y. 558; Brewster v. City of Syracuse, 19 id. 117.)</p>

<p>1. Criminal law—Exhibitions.</p> <p>The inalienable right of a child of immature years to pursue a trade is limited to such as the state, as parens patriae, recognizes as proper . and safe.</p> <p>2. Same.</p> <p>The provision of section 292 of the Penal Code applies to all exhibí tions or shows.</p> <p>3. Same.</p> <p>Such provision is not violative of any right secured by the Constitution, but is within the police power of the legislature.</p>

This action was brought against defendants, who were nonresidents, as co-partners, to recover rent due, etc., under a lease. On August 1,1892, an order was obtained for service bf the summons by publication, and on August 15, 1892, a warrant of attachment was procured and a levy made thereunder upon partnei'ship property.

The action was originally brought against Calvin H. Bell; he having died during its pendency, the executors of his will were substituted as defendants. The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence of the value of' the property in the case xxpon which the verdict can be sustained.

This was a judgment creditor’s action brought by plaintiff, as administratrix of David Kain, deceased, to have adjudged and declared fraudulent and void as to her intestate, a transfer of certain… Held: and long settled the construction of the Revised Statutes as to fraudulent conveyances, that under its provisions a conveyance made with the intent to hinder, delay or defraud creditors, or other persons, as against them is void.

Kelson, deceased, and ratifying and confirming the prior probate thereof. The facts, so far as material, are stated in the opinion. The Surrogate’s Court erred in admitting jiroof of what Judge Kelson said from time to time in relation to his alleged will, and of his condition when it was made.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made June 23, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Plaintiff cannot recover because no such notice as required by chapter 403, Laws of 1892, wTas ever served or given in any manner. Chapter 646, Laws of 1873, is repealed by chapter 403, Laws of 1892, and at the time of the trial the latter act wras the only law ' in force giving or creating a cause of action in such a case as this, and the law in force at the time of the trial governed the rights of the parties, even though plaintiff’s alleged cause of action arose before the enactment thereof. (Town of Duanesburgh, v. Jenkins, 57 Hun, 178; In re Inst. for Deaf & Dumb, 121 N. Y. 218; People v. G. & S. T. Co., 98 id, 67; 32 Hun, 491; People v. Jaehne, 103 id. 182; Anderson v. Anderson, 112 id. 104; Munger v. People, 55 id. 112; People ex rel. v. City of Brooklyn, 69 id. 605; Dash v. Van Kleeck, 7 Johns. 477-479; C. M. Co. v. Vanderpoel, 6 Cow. 566 ; 16 Barb. 15 ; In re Southworth, 5 Hun, 55 ; Lyddy v. Long Island City, 104 N. Y. 218; Heckman v. Pinkney, 81 id. 211-215; E. P. Co. v. Lacy, 63 id. 422 ; Livingston v. Harris, 11 Wend. 329 ; People ex rel. v. Bell, 47 N. Y. 57-68.) But, irrespective of any question of repeal by implication, plaintiff could not maintain this action, because at the time of the trial the statute of the state provided that the action could not be maintained unless notice has been given to the licensee or his agents, or to the person or persons selling or giving away, etc. As plaintiff has no cause of action against defendant at common law, her cause of action, if any exists, must be brought within the provision of the statute, which cannot be extended by implication ,to create a cause of action not by its express terms created, nor in favor of any person to whom such cause of action is not by the express terms given. ( V. C. C. Co. v. Murtaugh, 50 N. Y. 314; 4 Lans. 17; Bonnell v. Griswold, 80 N. Y. 128 ; 18 Hun, 496 ; Cayuga Nation of Indians v. State, 99 N. Y. 235.) The statute does not allow a recovery for damages to means of support as provided by the old law, but only for an injury to persons or property in consequence of the intoxication,'and, therefore, does not allow a recovery of damages for the death of any person in consequence of intoxication, because such an action cannot be maintained at common law and the statute does not by its terms provide it. 27or does it provide for an action by a posthumous child in any case. (People ex rel. v. Albertson, 55 N. Y. 50.)</p> <p>The excise statutes of 1892 (Chaps. 401 and 403) did not repeal the Civil Damage Act of 1873 (Chap. 646), nor do they have retroactive effects so as to abrogate existing rights which had accrued under the Civil Damage Act of 1873, when the excise acts of 1892 became laws. (Reinhardt v. Fritzsche, 69 Hun, 565 ; Bullock v. Town of Durham, 64 id. 380; Sanford v. Bennett, 24 N. Y. 20; Dash v. Van Kleeck, 7 Johns. 477; People v. Supervisors, 43 N. Y. 130, 134, 136; People v. McCall, 94 id. 590; In re Miller, 110 id. 216; In re Prime, 136 id. 347; Davies v. Fairbairn, 3 U. S. 636, 645; Bertholf v. O'Reilly, 74 N. Y. 509, 513; Volans v. Owens, 74 id. 526; Dudley v. Parker, 132 id. 186; Hall v. Germain, 14 N. Y. Supp. 5; Comstock v. Hopkins, 15 id. 908.) Whether the act of 1892 repealed by implication or only amended the act of 1873 it did not have the effect to destroy the plaintiff’s vested right which had accrued under the act of 1873 prior to the act of 1892. (Sanford v. Bennett, 24 N. Y. 20; Vanderkar v. S. R. R. Co., 13 Barb. 393; Eastman v. Clackamas Co., 32 Fed. Bep. 24; Potter’s Dwarris on Statutes, 162 ; Endlich on Interp. of Stat. 480, 481; In re Miller, 110 N. Y. 223.) The legislature did not intend to abrogate and destroy the rights of persons who, acting under the Civil Damage Law of 1873, were seeking to enforce the same at the time when the subsequent acts were passed. (Smith v. People, 47 N. Y. 330; People ex rel. v. Davenport, 91 id. 574; Dash v. Van Kleeck, 7 Johns. 502 ; Volans v. Owens, 74 N. Y. 530.) The point made on behalf of the appellant that the plaintiff cannot maintain this action for the reason that she was born the day after her father died is untenable. The question was not presented in the trial court and for the first time at General Term, and not having been presented on the trial cannot be raised on appeal. (Binnse v. Wood, 37 N. Y. 526, 532; Thayer v. Marsh, 75 id. 340 ; Sterrett v. T. N. Bank, 122 id. 659.) But, assuming that the child was not born until the day after the death of her father, she was injured in her means of support in consequence of the death of her father, and for this she has a cause of action against the defendant under the Civil Damage Act. (The George & Richard, L. R. [3 Adm.] 465.) The facts establish a cause of action against the defendant. (McCarthy v. Wells, 51 Hun, 171; Meade v. Stratton, 87 N. Y. 493.)</p>

Bartholick, deceased. George A. Bartholick died in Monroe county in July, 1888,. leaving an alleged will which related to real and personal estate. Charles Flaherty was named as a legatee in and as one of the executors of the will. The testator left him surviving-his widow, Julia A. Bartholick, a brother, Joshua Bartholick, and a granddaughter of a deceased sister, being his grandniece, Mrs. Luisita B. Kirley.

The nature of the action and the facts, so far as material, are stated in the opinion. The order of publication of the summons in Cartan v. Kahle, and of the sufficiency of the affidavit upon which the same was granted, cannot be questioned in this action. The judge granting the order being vested with jurisdiction to pass upon the sufficiency of the proof, if the proof was satisfactory to him the order cannot be impeached collaterally.

This action was brought to recover $2,000, the amount of a policy of insurance upon the life of Austin Matson, Jr., with interest. The policy was procured by the father of the insured and was payable to Mm, his executors or assigns.

1893, convicting defendant of the crime of murder in the first degree, and from an order denying a motion for a new trial. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are set forth in the opinion. The commissioners -vwere justified in their determination that the aggregate value of the capital stock after deducting the assessed value of the real estate of the corporation, equaled the assessment made.

This action was brought to recover the last installment under a building contract entered into by plaintiff with Ellen ■O’Brien, defendant’s testatrix. The contract provided for the payment of the contract price in specified installments from time to time as the work progressed • the last installment upon its completion “ provided a certificate shall be obtained ” from the architect. The contract also contained this provision : “ Fourth.

also affirmed an order denying a motion directed by the court. This was an action of trespass. The plaintiffs were wholesale merchants and lessees of the first floor and basement of No. 632 Broadway, New York city, where they conducted the business of the sale of millinery goods.

This was a reference under the statute of a disputed claim presented by plaintiff to defendant as executor of the will of Thomas Cornell, deceased. The facts, so far as material, are stated in the opinion.

This action was brought by plaintiffs as executors of Barbara C. Rikert, deceased, upon a fire insurance policy issued by defendant to Maggie P. 0. Smith, loss, if any, being made payable to plaintiffs’ testatrix as mortgagee. The facts, so far as material, are set forth in the opinion. The policy was invalidated by the bringing of the action of foreclosure, and the appellant should have had judgment at the trial. (Baumgartel v. P. W. Ins.

The plaintiff commenced this action to recover from the defendant a certain deed alleged to have been executed by plaintiff’s father and delivered to defendant under instructions to deliver the same to the plaintiff upon the death of the grantor.

Appeal by the defendant, the Equity Gas Works Construction Company, from judgment of the General Term of the City Court of Brooklyn, entered upon an order made April 5, 1893, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of Special Term overruling demurrers by said defendant and the defendant John Devlin to the complaint. The nature of the action and the facts, so far as material, are set forth in the opinion.

The relators, the Board of Commissioners of Fisheries of the State of Hew York, applied for a writ of peremptory mandamus to compel defendant to pay over to them moneys collected by him as a justice of the peace for fines imposed for using purse nets in Long Island sound. The facts, so far as material, are stated in the opinion. The amendment of 1893 is not unconstitutional, and it was not beyond the power of the legislature to deprive the county of this fund.

The facts, so far as material, are stated in the opinion. There is-, no evidence in the case tending to show that the state was. negligent in respect to the claimant, or that the negligence of the state caused or contributed to the injury complained, of, (Bedlow v. N. Y. F. D. D. Co., 112 N. Y. 263.) There was. no proof offered by which the Board of Claims could find that the claimant was free from negligence contributing to the injuries complained of, even assuming that the…

The relator is a corporation organized under the General Manufacturing Act, witli a capital stock actually paid in, or secured to be paid in, of $14,964,900, and was assessed by defendants for the year 1892 at $15,000,000.

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

<p>Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 20, 1893, which affirmed a judgment of the court of general sessions of the peace in and for the city and county of New York entered upon a verdict convicting defendant of the crime of manslaughter in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The, learned trial judge erred in denying the defendants’ motion for a jury trial of the claim for rental damages held by the plaintiff by assignment, and incidental only to the ownership of her predecessors in title.

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made January 18,1893, which affirmed an order of Special Term granting an application for a Avrit of peremptory mandamus, the substance of which, and the material facts are stated in the opinion.</p> <p>The Court of Sessions had power to suspend sentence upon Attridge during his good behavior.' (People v. Bradner, 107 N. Y. 1; In re Jennings, 10 Hun, 301; People v. Willett, 102 N. Y. 251; Code Crim. Pro. §§ 22, 39; Fuller v. State, 1 Blackf. 66; People v. Graves, 31 Hun, 382; People v. Whipple, 9 Cow. 715; 1 Bishop’s Crim. Pro. § 1124; Comm. v. Dowdican, 115 Mass. 136 ; State v. Addy, 14 Vr. 114 ; Weaver v. People, 33 Mich. 297 ; Comm. v. Chase, Thatcher’s Crim. Cas. 269; Fultz v. State, 2 Sneed, 232; Allen v. State, Mart. & Yerg. 294; People v. Reilly, 53 Mich. 260; Comm. v. Maloney, 145 Mass. 205; People v. Blackburn, 6 Utah, 347; Gibson v. State, 68 Miss. 241; State v. Hadley, 110 N. C. 522 ; Sylvester v. State, 65 N. H. 193 ; Rex v. Ryan, Cox’s Crim. Cas. 109; Hinman v. People, 1 Blackf. 66; Fuller v. State, 41 N. Y. 606; Blend v. People, 13 Hun, 266.) , -The common-law right vested in the courts to suspend sentence in criminal cases has not been taken away by any statute in this state (except only in murder cases, Code Crim. Pro. § 495); nor is the exercise of such right unconstitutional. (Penal Code, §12; Code Crim. Pro. §495; 1 Archibald on Crim. Prac. [8th ed.] 577, § 180; 1 Colby on Crim. Law, 390 ; 1 Chitty on Crim. Law, 699 ; 3 Whart. on Crim. Law [7th ed.], § 3395 ; Barbour on Crim. Law [3d ed.], 806, 807; Fitzgerald v. Quann, 109 N. Y. 445 ; Manning v. Beck, 129 id. 16; Laws of 1893, chap. 279 ; Penal Code, § 12.) The Court of Sessions having the power -to exercise its discretion to impose sentence, or to suspend it during good behavior, this court cannot interfere with that discretion, even though it may think the discretion was improperly exercised. (High on Ex. Legal Rem. § 156.)</p> <p>The Special Term is the proper tribunal in which to make this application. (Code Civ. Pro. §§ 2068, 2069.) There is practically no dispute as to the facts of this case; therefore, if the motion be granted, a peremptory writ of mandamus should issue in the first instance. (Code Civ. Pro. §.2070.) The Court of Sessions has ample power to bring the accused before it for sentence at any time. (Code Crim. Pro. § 299.) The Oourt of Sessions has no power to suspend sentence, and any attempt to exercise that powrer is a nullity. (People v. Brown, 54 Mich. 15; People v. Reilly, 53 id. 262; People v. Morisette, 20 How. Pr. 118; United States v. Wilson, 46 Fed. Rep. 748; People v. Blackburn, 23 Pac. Rep. 759; Penal Code, §§ 12, 13; Code Crim. Pro. §§ 482, 483.) Suspension of sentence during good behavior is, in fact, a conditional pardon, the defendant being granted exemption from the punishment imposed for his crime, on condition that he thereafter obey the laws and lead an exemplary life. The pardoning power is vested solely in the governor. (People v. Brown, 54 Mich. 15 ; People v. Reilly, 53 id. 262; People v. Morisette, 20 How. Pr. 118; U. S. v. Wilson, 46 Fed. Rep. 748; People v. Blackburn, 23 Pac. Rep. 759.) Article 4, section 5 of the State Constitution provides that the governor “ shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with sucli restrictions and limitations as lie may think proper, subject to such regulations as may be provided by law relative to the maimer of applying for pardons.” Therefore, a suspended sentence in any case by a court, being a conditional pardon, is in conflict, and chapter 279, Laws of 1893, is unconstitutional. (Cooley on Const. Lim. 115; 26 Ala. 439; State v. Sloss, 25 Mo. 292; State v. Todd, 26 id. 175 ; 26 Ark. 74, 600.) The legislature, in passing chapter 279, Laws of 1893, have disregarded the express language of the Constitution. (People v. Albertson, 55 N. Y. 50; Settle v. Van Evrea, 49 id. 280; Sweet v. Hulbert, 51 Barb. 312; In re Woolsey, 95 N. Y. 135.) A mandamus issues to compel discharge of official duty by a public officer. (127 N. Y. 391; People. ex rel. v. Rice, 129 id. 449 ; U. S. v. Peters, 5 Cranch, 115.) A suspension of sentence being unauthorized and a nullity, and chapter 279, Laws of 1893, being unconstitutional, a mandamus from this court is the proper remedy to compel the Court of Sessions to do the duty imposed upon it by the statutes of this state governing the case at bar, which duty said court refuses to perform. (People ex rel. v. Court of Sessions, 1 Park. Crim. Rep. 369.)</p>

The facts, so far as material, are stated in the opinion. Onus of establishing dedication of lands by owner to public use is upon party setting np same and claiming to dispose of, u.se or. otherwise-interfere with sueli lands on the basis of sueli dedication. (Holdane v. Trustees Cold Spring, 21 N. Y. 477.) Respondent failed to show acceptance by the public. Intention of owners to dedicate is not sufficient. It must be followed by acceptance by the public or a private person.

This action was brought in September, 1883, against defendant individually and as administratrix of Patrick H. Drake, and as executrix of Jane- E. and Virginia M. Drake, for an accounting and to redeem certain lands which Patrick H. Drake had claimed to own as purchaser under the foreclosure of a mortgage executed to him by Frederick Lewis and wife.

Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 31, 1893, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.

The facts, so far as material, are stated in the opinion. The statute under which the mandamus Avas granted imposes no duty upon the mayor to give Avritten directions to the city engineer. This is a matter Avithin his discretion, and no mandamus lies to compel its performance.

<p>Appeal from, judgment of the General Term of the-Superior Court of the city of Mew York, entered upon an order made March 6,1893, which affirmed a judgment in favor of plaintiff: entered upon a verdict directed by the court and also affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material,, are stated in the opinion.</p> <p>Defendant must, under a general denial, be permitted to controvert by evidence everything which the plaintiff is bound, in the first instance, to prove to make out his cause of action. (Griffin v. L. I. R. Co., 101 N. Y. 354; Wheeler v. Billings, 38 id. 264.) Defendant was entitled to defeat the plaintiff’s intestate’s claim by showing that he had no cause of action at the time the action was commenced. (Gilman v. Gilman, 111 N. Y. 265 ; Andrews v. Bond, 16 Barb. 633-641; Raynor v. Timerson, 46 id. 525; Creque v. Sears, 17 Hun, 125 ; Benson v. Hatch, 43 id. 146.) Any evidence to disprove the allegations of the complaint was competent on the part of the defendant in denial and not as an affirmative defense. (Dietrich v. Dreutel, 43 Hun, 342; Hebbard v. Haughian, 70 N. Y. 59.) The plaintiff having given proof of a cause of action not pleaded, the defendant was entitled to defeat it by any evidence which he had under his control irrespective of his answer. (Arnold v. Angell, 62 N. Y. 512.) Defendant was ■entitled to go to the jury on the claim of the defendant that the trust had been terminated by the plaintiff on July 10, 1800. (Lawrence v. Simons, 4 Barb. 354, 358, 359.) It is not necessary to plead that the contract sued upon, whether in writing or verbal, was against public policy or public morals, but the defendant may, without pleading it, raise the question, upon the suggestion of the fact of the real character of the contract. However made to the court, the court should take knowledge of it and permit the facts to be proved, and either dispose of it by direction where the facts are undisputed, or submit the question to the jury, where it is one of fact, whether or not the contract is against public policy and public morals. (Coppell v. Hall, 7 Wall. 542 ; Oscanyan v. Arms Co., 103 U. S. 261; Lee v. Johnson, 116 id. 52; Richardson v. Buell, 77 Mich. 656; Bottomly v. U. S., 1 Story, 135; Martin v. Wade, 37 Cal. 174, 170 ; Twist v. Child, 21 Wall. 450, 452.) It matters not that the evidence bringing the case within the rule of malum in se required the defendant to give proof of facts as to which the plaintiff had given no evidence. (O'Brien v. McCann, 58 N. Y. 376; Nellis v. Clark, 20 Wend. 24.)</p> <p>That the present plaintiff was properly substituted, and has title in both a representative and an individual capacity, was conclusively determined by the order of November fourteenth, which revived and continued the action. No new pleadings were necessary. (Moore v. Hamilton, 44 N. Y. 672; Smith v. Zalinski, 94 id. 519; Gibson v. A. P. Bank, 98 id. 87; Greenwood v. Marvin, 111 id. 423.) The decision of the Court of Apjieals is the law of this case on all other questions raised at the trial. (Moore v. M. N. Bank, 18 N. Y. Supp. 296; Milbank v. Jones, 127 N. Y. 370; Corn v. Rosenthal, 22 N. Y. Supp. 700.) Illegality, if proved, would constitute no defense. (Kinsman v. Parkhust, 18 How. Pr. 289; Brooks v. Marvin, 2 Wall. 81; P. Bank v. U. Bank, 16 id. 500; U. P. R. R. Co. v. Durant, 96 U. S. 579 ; W. U. T. Co. v. H. P. R. R. Co., 3 Fed. Rep. 428; Burke v. Flood, 1 id. 548; Wann v. Kelly, 5 id. 587; N. M. L. Ins. Co. v. Elliot, Id. 229.) Neither modification of contract nor waiver of complete performance can be shown under the general denial. (Lauitz v. King, 93 Mo. 513; Eiseman v. H. Ins. Co., 74 Iowa, 11.) The judgment and order appealed from should be affirmed, with costs and ten per cent damages for delay. (Cohen v. Mayor, etc., 128 N. Y. 594.)</p>

The nature of the action and the facts, so far as material, are set forth in the opinion. The complaint should have been dismissed upon appellant’s motion at the opening of the case on the ground tliat-it failed to state facts sufficient to constitute a cause of action.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no cloud on the title. (Laws of 1871, chap. 381; Smith v. Buhler, 121 N. Y. 213 ; Lockwood v. Gehlert, 127 id. 244; Bowns v. May, 120 id. 362 ; Purcell v. Elliott, 6 Pet. 95; Hyatt v. Seeley, 11 N. Y. 58.) Plaintiff’s suit was premature. (Guest v. City of Brooklyn, 69 N. Y. 512; Clark v. Davenport, 92 id. 483.) Plaintiff mistook his remedy.

upon an order made September 11, 1893, which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial at Circuit. The nature of the action and the facts, so far as material, .■are stated in the opinion. The defense set up in the .answer to the effect that plaintiff’s cause of action was barred by a former adjudication was not established.

The nature of the claim and the facts, so far as material, are stated-dn the opinion. William HVI. Murray, as cashier of the Goshen National Bank, had no authority to draw a draft in favor of his personal creditors against its funds on deposit with its reserve agent, to pay his individual debts, without first paying the bank for 'such 'draft.

Bernsee, deceased. Upon hearing of the application for the probate of ,said will, it was objected to as not executed according to law; that the testatrix was not competent to make a will and unduly influenced. These objections were overruled and the will admitted to probate. Upon appeal to' the General Term the decree was reversed and issues framed which were ordered to be tried at Circuit.

This was an action of ejectment. The facts, so far as material, are stated in the opinion. The dismissal of the complaint in this action is based on the fact that the plaintiffs did not show either a connected chain of title back to the sovereign or a pedis possessio of the premises. Such dismissal was error.

The nature of the action and the facts, so far as material, are set forth in the opinion. The sale made by Gallaudet & Co. did not constitute a conversion.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made July 8, 1892, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit, without a jury, dismissing the complaint, and also affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Title to personal property cannot be divested except by the fault or with the consent of the owner. (Hall v. Robertson, 2 N. Y. 293; Eli v. Ehle, 3 id. 506 ; Wooster v. Sherwood, 25 id. 278; Brower v. Peabody, 13 id. 121; Saltus v. Everett, 20 Wend. 267; 2 Kent’s Comm. 621; Boyce v. Brockway, 31 N. Y. 490; Bassett v. Spofford, 45 id. 387; Barnard v. Campbell, 55 id. 456; Gillett v. Roberts, 57 id. 34; Everett v. Coffin, 6 Wend. 603; Williams v. Merle, 11 id. 80; Hoffman v. Carow, 22 id. 285-294; Prescott v. De Forrest, 16 Johns. 159.) The plaintiff, having a property right in the pictures or drawings on the stones, acquired the right to the stones themselves by paying to the defendant the value of the stones. (2 Code Napoleon, arts. 566, 567, 569, 570, 571, 572, § 2.) One tenant in common can maintain trover as for conversion against his co-tenant. (Hudson v. Swan, 83 N. Y. 552; Fiero v. Betts, 22 Barb. 633 ; Hyde v. Stone, 7 Wend. 354 ; 9 Cow. 230; Gilbert v. Dickerson, 7 Wend. 449; Mumford v. McKay, 8 id. 442; Farr v. Smith, 9 id. 338; White v. Osborne, 21 id. 72.)</p> <p>This appeal presents no question which this court will review. (Code Civ. Pro. §§ 1010, 1022, 1023; Bridger v. Weeks, 30 N. Y. 328; Wood v. Lary, 124 id. 83, 87; Gilman v. Prentice, 132 id. 488, 492.) The appellant’s evidence shows that lie has acquired no property in the stones or right to the use or possession of them. (Gregory v. Striker, 2 Den. 629; Dodworth v. Jones, 4 Duer, 201; 2 Pars, on Cont. 86; 2 Story on Bail. § 2; 2 Kent’s Comm. 559.) Appellant failed to show any violation of his rights, or damages sustained by him. (Lennon v. Smith, 124 N. Y. 581; Stevens v. Gladding, 17 How. [U. S.] 447.) The rulings upon evidence were correct. (Hillreigel v. Manning, 97 N. Y. 60; Gumb v. T. T. S. S. R. R. Co., 114 id. 411.)</p>

This action was brought to recover $2,500, with interest thereon from May 1, 1882, which the complaint alleged belonged to plaintiff and had been received by Ashbel W. Biley, defendants’ testator. The Statute of Limitations was pleaded as a defense. The facts, so far as material, are stated in the opinion. Plaintiff’s cause of action was not barred by the Statute of Limitations. (Code Civ.

This action was brought-to recover damages for defendant’s .refusal to receive three parcels of canary seed sold to him by plaintiff. The facts, so far as material, are stated in the opinion.

This action was brought to foreclose a mechanic’s lien filed by plaintiff, a sub-contractor, against defendants, the contractor and owner. Plaintiff contracted to do the plasterer’s work according to-the written specifications of a building contract between the owner and the principal contractor. The defendants set up as a defense a substantial breach of the contract on the part of plaintiff. The further material facts are stated in the opinion.

<p>As under the provisions of the act of 1873, in relation to the collection of taxes in the county of Suffolk (Chap. 620, Laws of 1873), the county treasurer’s deed on sale of land for unpaid taxes is made conclusive evidence that the sale was regular, and presumptive evidence of the regularity of all prior proceedings, where such proceedings are, in fact, Void, an action to cancel the deed, as a cloud on title, is maintainable.</p> <p>It is essential to the validity of every assessment for the purposes of taxation that the statute under the authority of which it is made, should be complied with in every substantial particular.</p> <p>In assessing unoccupied lands in said county belonging to plaintiff, who was a non-resident of the county, the name of plaintiff was inserted in the first column of the assessment roll, under the head of non-residents, and his place of residence was written under the name in that column. In all other respects the provisions of the statute in respect to the assessment of non-resident lands were complied with. (1 R S. 390, §§ 9, et seq.) In the warrant attached to the roll the collector was commanded to collect from the persons whose names are inserted in the first column, “ other than such persons as are named as a part of the description of the lands of non-residents.” In an action to compel the cancellation of a deed given on sale of said lands for non-payment of the taxes, held, that the assessment was made in such form as, at least, to leave it open to doubt whether plaintiff’s name was so entered as a part of the description of the lands, or for the purpose of including him among the taxable inhabitants; that there was not a substantial compliance with the statute, and so that plaintiff was entitled to the relief sought.</p>

This action was commenced by the plaintiff to compel specific performance of an oral agreement made with her by the defendant to execute to her a life lease of certain land owned by him. The facts, as alleged in the complaint, are as follows: The plaintiff married the defendant’s son, John A. Dnnckel, in 1862.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made March l'T, 1893, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial.</p> <p>For some time prior to Feb. 21, 1880, one Schamu M. Moschcowitz and Miss Mary A. Russell were partners with ■equal interest in the dress-making business in Mew York city, under the firm name of Moschcowitz & Russell, having a place of business in Fifth avenue.</p> <p>On the day mentioned Miss Russell died in Mew York and left a will, which was subsequently duly proved, in which she appointed her sister, Elizabeth L. Russell, executrix thereof, who subsequently duly qualified.</p> <p>At the time of this death the partnérship had large assets, consisting of stock in trade, accounts and an unexpired term in the real property in Fifth avenue, where the business had been carried on. The surviving partner took possession of the firm assets and continued the business until May 1, 1880, at which time it was ascertained by him and James McCall that the assets of the late firm amounted to a little over $51,000 above all liabilities, and all the liabilities of the late firm were paid and discharged, except a claim made against it by one Herman Moschcowitz, a brother of Schamu, which claim was not admitted, bxxt provision for it was inade in the judgment hereafter referred to. In May, 1880, Schamu Moschcowitz and James McCall formed a partnership, xxnder the name of Moschcowitz & Russell, for carrying on the same kind of business at the same place as the late firm. The capital upon which this new finn canned on the business consisted solely of the assets and good will of the late firm. Of this fact James McCall had at all times "full knoxvledge. This capital was used by the new firm for their own purposes, and no part was paid over to the representative of the deceased partner.</p> <p>This new firm coxitinued business xxntil Jan., 1881, when a new partner was added in the person of the brother Herman, and the finn name was chaxiged to that of Moschcowitz Broth-ex’s. The sole capital of this firm consisted .of the assets, proceeds of assets and good will of the old firm of Moschcowitz & Russell, of which Miss Russell was a partner when she died. Of this fact all membei’s of the firm had full knowledge, and the two firms appropriated to their own use all the surplus assets belonging to the old original firm. In Feb, 3 882, McCall commenced an action to wind up the affairs of the partnership of Mosclicowitz Brothers, and on March 10, 1882, Scliamu M. Mosclicowitz was appointed receiver of all its assets. The case proceeded to judgment declaring the partnership, and ordering a reference to take an account, etc. The receiver sold assets and realized some $7,000, which were, by order, deposited in a trust company, subject to further directions.</p> <p>In Oct, 1880, the executrix of the late partner commenced an action against the survivor for an accounting, and in the complaint it was alleged that the defendant had then received sufficient assets to have paid off all its debts and have closed up the business, but that he had neglected to do so, and had continued in possession of the real estate, and carried on the same kind of business theretofore conducted in the lifetime of Miss Bussell, and that he used the assets and property of the late firm in his business, and made no effort to sell or dispose of the same, except in the course of his business, and that lie had then in his possession, unsold and undisposed of, the greater part of the assets and property of the late firm, which were becoming constantly less and less valuable. The plaintiff asked for an accounting and a judgment in her favor for the amount that might be found due, and that a receiver might be appointed, and the defendant restrained from continuing the business and from using the old firm name. Issue was joined and the case tried, and upon the accounting the amount of the plaintiff’s interest as executrix in the assets of the late firm was determined, and a judgment entered personally against the survivor, and a proviso made therein for his paying to a trust company an amount sufficient to pay any claim that Herman Mosclicowitz might establish against the late firm. Judgment for the balance of some $34,000 was given, but on appeal to the General Term that balance was reduced to a small sum of between three and four hundred dollars. This judgment as modified has never been satisfied, nor has the surviving partner ever complied with its terms by making the deposit provided for thereby. The judgment as modified by the General Term was entered in Oct., 1886. In 1888 the executrix of the deceased partner commenced this action, and, having since died, the plaintiff has been appointed administrator of the estate of the deceased partner, with the will annexed, and as such lias been substituted as plaintiff. The action is against the survivor, Schamu M. Moschcowitz, both individually and as receiver of the firm of Moschcowitz Brothers, also against Herman Moschcowitz, and Laura S. McCall as executrix of the will, etc., of James McCall, deceased, the partner in the two firms already mentioned.</p> <p>The plaintiff in the complaint alleged, upon information and belief, the facts above detailed as to the formation of the firms and their use of the assets of the late firm.</p> <p>A claim was also set up therein of a lien in favor of the plaintiff, upon the amount of money paid into the trust company by the receiver of Moschcowitz Brothers, after expenses of its administration, which claim of lien was founded upon the allegation that the money represented the proceeds to that extent of the assets of the old firm. Judgment against all the defendants was aslced for the amount of the judgment against Schamu M. Moschcowitz already recovered, and also for an injunction restraining defendants from interfering with the fund on deposit, or the other assets.</p> <p>The Moschcowitz Brothers answered, and, among other things, alleged the commencement of the action against Schamu and the judgment therein, and claimed that the plaintiff was not -entitled to another judgment against the defendants, or any of them, for the amount of assets that came into their hands, or for any other sum whatever. Laura McCall answered and denied the allegations of the complaint, set up the defense that the assets of the firm had been disposed of by the survivor under the permission of the executrix of the deceased partner, and that for her interest in the assets she had recovered a judgment against the survivor, and that the assets had been lawfully disposed of by him. Also, that all the moneys, assets, etc., claimed to be recovered in this action, were in the custody of the Court of Common Pleas, and that the defendant was entitled to the whole of them. It also appears that, at the time of the death of Miss Russell, James McCall was a creditor of the firm to the amount of some $18,000. That sum was paid during the subsequent time by reason of transactions of McCall with the succeeding firms, by which it is claimed that lie became their creditor to the extent of over twenty thousand dollars. Scliamu M. Mosclieowitz always denied that McCall was ever a partner in either firm, although the fact was otherwise found in the suit which McCall instituted to dissolve the partnership.</p> <p>Upon the trial it was found, in addition to the foregoing facts, that the estate of McCall was in no event liable to Herman Mosclieowitz by reason of any claim he might have against the old firm in which Miss Russell was a partner. Judgment was ordered in -favor of plaintiff and against defendant McCall for the amount of the share of the assets of the old firm due plaintiff as administrator, with interest and costs. Mo further personal judgment was given against Schamu M. Mosclieowitz and none was given against Herman Mosclieowitz. Mo one but the defendant McCall appealed, from the judgment. Upon her appeal the General Term of the Supreme Court reversed the judgment upon the facts as well as upon the law and granted a new trial, and the plaintiff has appealed from that order, giving the usual stipulation for judgment absolute against him in case the order be affirmed.</p> <p>The executrix of Mary A. Russell, deceased, apart from the question of her knowledge, did not, by the commencement of her action for an accounting against Scliamu M. Mosclieowitz, the surviving partner of the firm of Mosclieowitz & Russell, thereby elect to look to such surviving partner alone, nor by the money judgment recovered therein is she estopped from maintaining an action to recover the value of the surplus assets of such firm, which the said McCall and Mosclieowitz had jointly and wrongfully appropriated to their own use. (Williams v. Whedon, 109 N. Y. 333 ; Loesvhigk v. Hatfield, 5 Robt. 20 ; Cushman v. Addison, 52 N. Y. 628; Fowler v. B. S. Bank, 113 id. 450; Lord al Tiffany, 98 id. 413; Sessions v. Johnson, 95 U. S. 347; Lovejoy v. Murray, 70 id. [3 Wall.] 129; Sturtevant v. Waterbury, 2 Hall, 449 ; Drake v. Mitchell, 3 East, 285.) The doctrine of election of remedies has no application, to the facts existing in this case. (Terry v. Munger, 121 N. Y. 161.) While the laAV governing the rights of partners in case of death of one vests all the property in the survivor for a specific purpose, it does not preclude the plaintiff from maintaining this action, notwithstanding the fact of the recovery of the judgment against Moschcowitz. ( Williams v. Whedon, 109 N. Y. 238 ; Knox v. Gye, L. R. [5 Eng. & Ir. App.] 636 ; Lindley on Part. 524; Vyse v. Foster, L. R. [7 H. L. Cas.] 318; L. R. [8 Ch. App.] 323; Travis v. Milne, 9 Hare, 141.) This action is brought against Schamu M. Moschcowitz individually and as receiver of the firm of Moschcowitz Brothers, Herman Moschcowitz and Laura S. McCall, executrix of James McCall, deceased, to reach a fund in the hands of such receiver, alleged to be the proceeds of the sale of property belonging to the original firm of MoschcoAvitz & Russell, and to have the claim of the representative of the deceased partner declared a lien thereon, and for such other and further relief as to which such representative might, be entitled. • To this form of action all the above named were proper parties defendant. (Wilkinson v. Henderson, 1 Myl. & K. 582 ; McDonald v. Richardson, 1 Giff. 81; 1 Lindley on Part. 199 ; Pope v. Cole, 55 N. Y. 124 ; Richter v. Poppenhausen, 42 id. 373; F. N. Bank v. Morgan, 73 id. 593; Ferris v. Van Vechten, 73 id. 113 ; Brewer v. Gillett, 115 id. 10.) To invoice the aid of the doctrine of election of remedies, knoAvdedge by the party against whom the election is claimed must be proved. (Conrow v. Little, 115 N. Y. 387 ; E. C. F. Co. v. Hersel, 103 id. 25 ; Hays v. Medas, 104 id. 602; Terry v. Munger, 121 id. 161; Stewart v. Moss, 79 id. 629.) The court at Special Term did not err in taking proof of the amount of money in the receiver’s hands over and. above the liabilities owing by him. ' (Glening v. Stedwell, 64 N. Y. 120 ; Rice v. Ehile, 65 id. 218 ; McCulloch v. Dobson, 133 id. 114; Coffin v. Lester, 36 Hun, 347.) The evidence sustained the findings of the Special Term, and did not warrant the General Term in reversing the judgment upon questions of fact. (Baird v. Mayor, etc., 96 N. Y. 567; Devlin v. G. S. Bank, 125 id. 756; Travis v. Travis, 122 id. 449; Nostrand v. Knight, 123 id. 614; Aldridge v. Aldridge, 120 id. 614; Burncup v. N. Bank, 96 id. 125 ; Ostrander v. Hart, 130 id. 406 ; Gilman v. Prentice, 132 id. 488.)</p> <p>The representative of the deceased partner, by prosecuting an action for her decedent’s share of the partnership assets to judgment against the survivor Moschcowitz alone, is barred from suing the surviving partner again, joining McCall with him upon the same cause of action. (Harrington v. Keteltas, 92 N. Y. 40; Loomis v. Armstrong, 63 Mich. 355, 361; Williams v. Whelan, 109 N. Y. 333; Preston v. Fitch, 137 id. 41; Ferris v. Van Vechten, 73 id. 113 ; Barker v. Barker, 14 Wis. 142; Mayor v. Le Clair, 11 Wall. 217 ; Crook v. F. N. Bank, 83 Wis. 31; A. Co. v. May, 82 Ga. 646; Terry v. Munger, 121 N. Y. 161; Scarf v. Jardine, L. R. [7 App. Cas.] 345; Conron v. Little, 115 N. Y. 387; Moller v. Tuska, 87 id. 166 ; Rodermund v. Clark, 46 id. 354; Morris v. Rexford, 18 id. 552; Bank of Beloit v. Beale, 34 id. 473.) The plaintiff’s right of action herein is merged in the judgment recovered against Moschcowitz, the survivor. (1 Bates on Part. § 535 ; Robertson v. Smith, 18 Johns. 459 ; Pierce v. Kearney, 5 Hill, 82; Olmstead v. Webster, 8 N. Y. 413 ; Suydam v. Barber, 18 id. 468 ; Candee v. Smith, 93 id. 349 ; R. L. R. Co. v. Roach, 97 id. 378, 382; U. S. v. Ames, 99 U. S. 35 ; Story on Bills, § 428.) The representative of a deceased partner who sues a survivor and recovers a personal judgment for the value of the interest of the decedent is estopped to deny that the assets became the survivor’s, and can make no claim against any person who took title to such assets under him. (Preston v. Fitch, 137 N. Y. 41; Egberts v. Wood, 3 Paige, 517; Knox v. Gye, L. R. [5 Eng. & Ir. App.] 656.) The plaintiff being fully cognizant of the uses made of the partnership assets by Moschc'owitz and McCall at and after the time of their appropriation, and choosing to remain inactive and non-assertive of her claims for eight years, is barred from recovery by laches and acquiescence. (Calhoun v. Millard, 121 N. Y. 69; Sullivan v. P. & K. R. R. Co., 94 U. S. 806; Badger v. Badger, 2 Wall. 87; Brown v. County of Buena Vista, 95 U. S. 157; Godden v. Kimmell, 99 id. 201; Coddington v. Railroad Co., 103 id. 409; B.& P. R. R. Co. v. N. Y. & N. E. R. R. Co., 13 R. I. 260, 266; High on Receivers, § 14; Pom. Eq. Juris. §§ 418, 815, 817.) It having been adjudged between the representative of the deceased partner and the survivor that the decedent’s share of the partnership assets amounted to $435.49, the representative of the decedent can recover no larger sum than the amount of her-determined interest. (Pom. Eq. Juris. § 1243; Williams v. Whedon, 109 N. Y. 333; Nicoll v. Mumford, 4 Johns. Ch. 522; Murray v. Fox, 39 Hun, 108 ; 104 N. Y. 382; Skidmore v. Collier, 8 Hun, 50; Wickliffe v. Eve, 17 How. Pr. 467.) The judgment recovered by the plaintiff against Schamn M. Moschcowitz has no binding effect upon McCall’s representative to determine the value of the assets that came into McCall’s hands. (Whart. on Ev. § 760; Dolbeer v. Stout, 139 N. Y. 486 ; Bissell v. Kellogg, 65 id. 432; McMahon v. Macy, 51 id. 155 ; Stephens v. Fox, 83 id. 313; Orthwein v. Thomas, 127 Ill. 554; Gilman v. Healy, 46 Hun, 310; Fontaine v. Hudson, 93 Mo. 62.) The recovery at Special Term cannot be upheld. (Ferris v. Van Vechten, 73 N. Y. 113; Cavin v. Gleason, 105 id. 256; Holmes v. Gilman, 138 id., 369; Bates on Part. '§ 740.) The learned trial justice erred in making the additional findings of fact and conclusions of law, based on the additional testimony erroneously taken at. the hearing regarding the settlement of the judgment. (Gormerly v. McGlynn, 84 N. Y. 284; Fairman v. Brush, 60 Hun, 442 ; In re Bayer, 54 id. 189, 191; Berdell v. Berdell, 33 id. 535, 536; F. N. Bank v. Levy, 41 id. 461; Palmer v. P. Ins. Co., 22 id. 224; Moores v. Townshend, 102 N. Y. 387, 392.) If it appears that the Special Term committed any error to which an exception was taken to the detriment of the respondent, this order granting a new trial must be sustained; it is not to be reversed except upon the showing that the Special Term was free from all error. (Reed v. McConnell, 133 N. Y. 425.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was entitled to judgment of separation on the evidence. (Pollock v. Pollock, 71 N. Y. 137; Waltermire v. Waltermire, 110 id. 183; Kelly v. Kelly, L. R. [2 P. & D.] 31, 32; Bihin v. Bihin, 11 Abb.

This action was brought to enforce the equitable lien of the plaintiffs for the purchase money of land conveyed by them to the defendant Margaret Boyle.

The facts, so far as material, are stated in the opinion. During the. years 1886, 1887 and 1888 the relator was engaged in business as a manufacturing company within the state, and, as such, was exempt from the payment of taxes for said years. (129 N. Y. 543, 664.) Manufacturing companies were expressly exempted from the tax; in such case the tax is recoverable without specially provided remedies.

The facts, so far as material, are stated in the opinion. Local taxation includes county taxation; an exemption from local taxation is an exemption from county taxation.

Merriam, deceased. The facts, so far as material, are stated in the opinion. A devise to the government of the United States, by the express terms of the statute imposing this tax, is exempt from the tax. (In re Prime, 136 N. Y. 347; Comm. v. Marshall, 11 Pick. 350; Yeaton v. U. S., 5 Cranch, 281; Butler v. Palmer, 1 Hill, 324; Miller's Case, 1 Wm.

The complaint in this action alleged that plaintiff and defendants were associated in business, under an agreement in the nature of a general partnership or quasi partnership ; that plaintiff was to draw thirty dollars per week and to be also entitled to a percentage of the net profits, which it was agreed should be two per cent for the first three years, four per cent for the fourth and five per cent for the balance of the period; that statements of the profits which were…

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence that plaintiff kept correct books of account was error. (Abb. Tr. Ev. 322-324; 1 Greenl. on Ev. § 118; 1 Whart. on Ev. §§ 678-700 ; Tomlinson v. Borst, 30 Barb. 42; Vosburgh v. Thayer, 12 Johns. 461; Burke v. Wolf, 6 J. & S. 271.) The plea of payment is fully sustained by the evidence. (Decker v. Livingston, 15 Johns. 479 ; Patterson v. O’Hara, 2 E. D. Smith, 58 ; Abb. Tr.

This action was brought to recover upon the following instrument: “ Rochester, LST. T., Oot. 18, 1889. “ Mr. G. Muller : “ Dear Sir.— Please pay to George W. Crouch, Jr., one thousand dollars ($1,000.00) and deduct the same from the amount of my contract for building your house on Sullivan street. “J. 33.

Plaintiff sought in this controversy to compel defendants to-complete a contract entered into by them with him to purchase certain lands in Erie county in this state. Defendants claimed that the title offered by plaintiff was not merchantable. The facts, so far as material, are stated in the opinion. The first question submitted to the court should have been answered in the affirmative.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in admitting in evidence the letter of John L. Miller, assignor of the plaintiff, dated June 6, 1890.

The nature of the action and the facts, so far as material, are stated in the opinion. The court at the trial of this action directed a verdict for the defendant, although the evidence was conflicting, with exceptions to be heard in the first instance at the General Term, and that court, after hearing the exceptions, directed a judgment for the defendant; this was error. (Purchase v. Matteson, 25 N. Y. 211; Code Civ.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made January 4, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought by the plaintiff to recover his compensation as a broker under the employment of the- defend•ants to find for them a purchaser of their real estate situated in the city of Hew York.</p> <p>Defendants put in issue the material allegations of the •complaint. Upon the trial plaintiff gave evidence tending to show his employment, the amount of his compensation and what he claimed to be performance of his contract. As to the performance, the only evidence for the plaintiff was that of himself and one Lewis. He testified that after his employment he went to Haskin’s house and told him that he had a buyer for the property at his price, $110,000, and asked him how much he required to be paid on the contract; that Haskin replied, $25,000 on the delivery of the deed, $5,000 on the signing of the contract; that the next day he again went to Haskin’s house with Lewis and introduced Lewis to him and told him “he was the gentleman who represented the buyers; that Mr. Haskin said £ all right,’ and wanted to know the names of the buyers,” and he gave him the names and he entered them in a memorandum book; that Mr. Lewis then told Haskin that he had $250 in his pocket and took it out, which he said he would pay to him and take a receipt, and that any time he named he would ■draw the contract and pay him the balance of the $5,000, the deed to be delivered on the first of Hovember; that Mr. Haskin expressed satisfaction with the persons named •as buyers; that no one was present but himself and Lewis •and Haskin, and that in his interview with Haskin he named ■eight persons as proposed purchasers of the real estate. It ■appears by his cross-examination that he was required to give a bill of particulars in this action, and that one of the persons named to Haskin as a buyer was not named in the bill of particulars, and that another one who was not named to Haskin was specified in the bill of particulars. Lewis testified that ■at the interview mentioned he told Haskin he had a “ syndicate which were willing to pay the $110,000,” and that he '“ had $250 in cash and took the money out and offered it to him to pay a deposit and take his receipt for the same,” which Haskin, for reasons stated, declined then to take; that Haskin •asked him “ who the syndicate was; ” that “ I gave him some of the names of the syndicate that we had at that time ; I •don’t think the syndicate was full when I went there,” and "that then he gave the names of the persons who had then joined the syndicate, one of whom, at least, was not among "the names mentioned by the plaintiff in his evidence. He "testified further: “ When I heard that the property was for ■sale we started- in to form a syndicate to purchase it, and I got these gentlemen together, part of them, not all of them, on a •Saturday evening in our office, and submitted the offer of $110,000; at least, submitted the price of $110,000 for the-property. There was nothing paid in. Each one assented to subscribe for one share. They authorized me to go to Haslrin. and offer him $110,000 for the property, and to pay $250 on the contract, or on the purchase of the property, and if Mr. Haslrin wished any more money to call on Mr. Martin Walter and he would supply it. I was to draw on Mr. Walter for the $5,000.” He also testified that he was a member of the syndicate; that he furnished the $250 which was offered to Haslrin, and that nd one else put up any money, and the-list of proposed purchasers testified to by him differed materially from the list of names specified as purchasers by the-plaintiff.</p> <p>The defendants, testifying on their own behalf, denied the' employment, the agreement for compensation and. the performance of the contract by the plaintiff.</p> <p>At the close of the plaintiff’s evidence the defendants moved to dismiss the complaint, specifying no grounds, and their motion was denied. At the close of all the evidence on both-, sides they again moved for the dismissal of the complaint and' for the direction of a verdict in their favor, specifying no-grounds for their motions, and the motions were denied.</p> <p>The evidence was then submitted to the jury and they found for the plaintiff, and from the judgment in his favor the defendants appealed to the General Term, and! to this, court.</p> <p>The exception to the-refusal of the court to direct a verdict for the defendants, brings up for review the question whether,'upon all the evidence in the case, the plaintiff was entitled to recover or had established his cause of action. (Appleby v. F. Ins. Co., 54 N. Y. 253 ; Schwinger v. Raymond, 105 id. 648; Hemmens v. Nelson, 138 id. 517; Peake v. Bell, 7 Hun, 454; Hamilton v. T. A. R. R. Co., 13 Abb. [N. S.] 318;) The minds of the parties never met as to the terms of sale; (Susdorf v. Schmidt, 55 N. Y. 95; Sibbald v. B. I. Co., 83; id. 378; Vreeland v. Velterlein, 33 N. J. L. 247; McGavock v. Woodlief, 20 How. Pr. 221; Stillman v. Fitzgerald, 37 Minn. 186.) The pretended purchasers were never produced to the vendors for their acceptance, and until that is done the broker is not entitled to commissions. (Rapalje on Real Est. § 72; Hayden v. Giullo, 35 Mo. App. 647; Pratt v. Patterson, 7 Phila. 135; Coleman v. Garrigue, 18 Barb. 60; Martin v. Bliss, 57 Hun, 159 ; Wylie v. M. Bank, 61 N. Y. 416.) The plaintiff never produced any purchaser to the defendant 'Tappen, and as to him made no proof of the performance of Ms contract of service as broker, which would entitle him to •recover. (4 Kent’s Comm. 367, 368; Blood v. Goodrich, 9 Wend. 68; Foster v. Eager, 2 Lans. 182; Loomis v. Suprs., 6 id. 269; Yates v. Andrews, 37 N. Y. 657; Morlock v. Butler, 10 Ves. 111.) The plaintiff failed to prove that the purchasers produced were of sufñcieirt ability to perform the proposed agreement for purchase and to pay for the property. 'The purchaser must be shown to be able to perform or commissions are not earned. (Rapalje on Real Est. § 72; Duclos v. Cunningham, 102 N. Y. 678; Barnard v. Monnott, 1 Abb. Ct. App. Dec. 108; 33 How. 140; 3 Keyes, 203; Everhart v. Searle, 74 Penn. St. 256; Iselin v. Griffith, 26 Iowa, 648.) 'The plaintiff cannot recover commissions because it appears from his own testimony that he was acting as the agent of the proposed purchasers. (Duryee v. Lester, 75 N. Y. 442; Dunlap v. Richards, 2 E. D. Smith, 181; Pierce v. Thomas, 4 id. 354; Cassard v. Hinman, 6 Bosw. 8; Rice v. Wood, 113 Mass. 133; Gordon v. Clapp, Id. 335; Bell v. McConnell, 37 Ohio St. 396 ; Lynch v. Fallon, 11 R. I. 311; Connelly v. Smith, 142 Penn. St. 25.)</p> <p>Each tenant in common could •convey or contract to convey only his own share. The •employment of plaintiff as broker by one defendant does not bind the other defendant. Hence, if either party is held not liable for commissions, and the other is held liable, the verdict is excessive and should be reduced one-half. ( Van Doren v. Balty, 11 Hun, 241; Bowman v. Travis, 54 NM. Y. 640 ; McLean v. McLean, 96 id. 655; Tuers v. Tuers, 100 id. 200.) To entitle the plaintiff to commissions as broker he must have established by competent proof employment by the defendants to effect a sale of the property Upon certain specified terms; that he has found a purchaser of sufficient responsibility who is willing to take the property upon the terms named. (Duelos v. Cuningham, 102 N. Y. 678.) Upon the testimony of plaintiff and his witness Eickwort it is clear that the transaction, so far as Tappen is concerned, was not a gen-, eral employment of plaintiff as a broker to sell the property, but an unsuccessful attempt on the part of plaintiff to buy the property for Eickwort, the parties not agreeing upon the price, but Tappen promising to pay a commission if the particular sale then under negotiation should be consummated with Has-kin’s consent. Ho valid performance was shown. Ho Iona ■fide purchaser on Haskin’s terms was secured. At most it was a tentative affair, not an accomplished fact. (Condict v. Cowdrey, 139 N. Y. 273.) The exception to defendants’ motion to direct a verdict for the defendants was well taken, and the motion for a new trial on the minutes should have 6 been granted. Plaintiff, as-matter of law upon the undisputed evidence, ought not tp have recovered, and should have been nonsuited. (Kaare v. T. S. & I. Co., 139 N. Y. 369; Sickles v. Flanagan, 79 id. 224.)</p> <p>The broker earns his. commission when he procures a person able and willing to purchase on his employer’s terms. (Stillman v. Mitchell, 2 Robt. 523 ; Barnard v. Mannot, 3 Keyes, 203 ; 33 How. Pr. 440; Levy v. Coogan, 30 N. Y. S. R. 553 ; Duclos v. Cunningham, 102 N. Y. 678.) The ability of the person who is willing tó buy will be presumed in the absence of evidence to the contrary. (Hart v. Hoffman, 44 How. Pr, 168.) The ease does not contain a certificate that all the evidence is-before the court, and in the absence of such a certificate the court will not review disputed questions of fact. (Levi v. Marshall, 30 N. Y. S. R. 283; Porter v. Penn, 107 N. Y. 531.) The counsel for the defendants requested the court to charge the jury “ that if the jury shall accept the testimony of Judge Tappen that no commissions should be paid until the deed actually passed that no verdict can be rendered for the plaintiff.” This was properly refused. (McGrath v„ M. L. Ins. Co., 6 N. Y. S. R. 376; Dolan v. D. & H. C. Co., 71 N. Y. 285.)</p>

This action was brought to recover damages for injuries to a pond belonging to plaintiff, alleged to have been caused by excavations made by defendants in the construction of an aqueduct. The facts, so far as material, are stated in the opinion. The defendants never were liable so long as they properly performed their contract, except for injuries that resulted from their negligence or their inefficiency.

This was an application under the statute (1 K. S. 125, § 51). by Henry Bradley, who had received a certificate of his election to the office of supervisor of the town of Minerva, Essex county, and had filed liis undertaking, which had been approved by the town board, to compel William H. Sullivan,, his predecessor in that office, to deliver over the moneys, books, papers etc. belonging to such office.

1892, which affirmed an order of Special Term directing the Southern Boulevard Railroad Company to pay the trustees of the estate of Paul SpofEord, deceased, an award for property condemned. The facts, so far as material, are stated in the opinion. The order is appealable, and. the constitutionality of the act of 1887 is reviewable by this' court. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The process was without authority of law. The information did not allege any fact tending to prove a crime or a threat to commit a crime. (Loomis v. Render, 41 Hun, 268 ; Code Crim. Pro. §§ 84, 86, 99 ; Penal Code, §§ 639, 653, 654; People v. Hart, 24 How.

The petitioner, John Y. L. Pruyn, was an executor and a legatee under the last will of his father, John Y. L. Pruyn,. deceased, and by this petition he has sought to compel Mrs. Anna P. Pruyn, the widow and an executrix under the will, to render an account of her proceedings as such executrix since January, 1878; at which time letters testamentary were granted to her.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 10, 1893, which affirmed a judgment in favor of plaintiff entered' upon a verdict, and also affirmed an order denying a motion for a new trial.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made June 23, 1893, which reversed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made the first Monday of May, 1893, which overruled defendant’s exceptions, denied a motion for a new trial and ordered judgment in favor of the plaintiff upon decision of the court on trial at Special Term.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 12, 1893, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p>

which affirmed a judgment in favor of defendant entered upon an order of the court nonsuiting plaintiff on trial at Circuit.

<p>Appeal from judgment of the General Term of the Supreme Court in fourth judicial department, entered upon an order made September 13,1892, which affirmed a judgment in favor of defendants entered upon the report of a referee.</p>