Volume 142 — New York Reports

This action was brought in 1890 for an accounting and contribution between partners. The facts, so far as material, are stated in the opinion. The Statute of Limitations is no defense in this case.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 15, 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>The nature of the action, and the facts, so far as material, are stated in the opinion.</p> <p>Defendant was not liable for any damage done to adjacent property unless it was proved that such damage was occasioned by the negligence of defendant or its servants. It was not liable for any incidental damages occasioned by the lawful operation of its road. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98 ; Conklin v. N. Y., O. & W. R. Co., 102 id. 107 ; Rauenstein v. N. Y., L. & W. R. Co., 136 id. 528 ; Bellinger v. N. Y. C. R. R. Co., 23 id. 42 ; P., etc., R. R. Co. v. Hendrickson, 80 Penn. St. 182 ; P., etc., R. R. Co. v. Shultz, 93 id. 341 ; McCraig v. E. R. Co., 8 Hun, 599 ; Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y. 243.) Upon the proof the jury had no. right to find that the engines of defendant had caused the injury. (McDermott v. N. Y. C. & H. R. R. R. Co., 8 Wkly. Dig. 531.) The jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the negligence and unskillfulness of the defendant is not sufficient. (Searles v. M. R. Co., 101 N. Y. 661, 662 ; Grant v. P. & N. Y. R. Co., 133 id. 657.) Railroad companies are not required to use any appliances which have not been tested, although approved by the highest scientific authority, but are required to use only those which have been tested and put into general use. (2 Wood’s Railway Law, chap. 19, § 326 ; Steinweg v. E. R. Co., 43 N. Y. 123 ; Babcock, v. F. R. Co., 140 id. 318.) It was incumbent upon plaintiff to show not only that the sparks came from defendant’s engines, but that the injuries of which he complained were occasioned by the negligence of the defendant in not using the proper and sufficient means, and such as were in ordinary use for arresting the sparks. The maxim res ipso loquitur has no application to the case. (Wiedmer v. N. Y. E. R. Co., 114 N. Y. 462 ; Cosulich v. S. O. Co., 122 id. 118 ; Reiss v. N. Y. S. Co., 128 id. 103, 107.) The court erred in submitting to the jury the question whether defendant was negligent in pot using a different smoke stack from what it did use. (Babcock v. F. R. Co., 140 N. Y. 308.) How long and how heavy a train should be must be a matter for the railroad to decide, and the mere fact that trains were long and heavy, and needed two engines, could be no evidence of negligence. (58 Hun, 233, 234.) The court erred in charging the jury, at the request of plaintiff’s counsel, that they were to determine what was the intrinsic value of the property that was destroyed, if they could find any evidence in the case as to what the intrinsic value was. (Fox v. Phelps, 17 Wend. 393 ; Brown v. Hoburger, 52 Barb. 15, 24 ; Smith v. Griswold, 15 Hun, 273 ; Van Rensselaer v. Mould, 48 id. 396, 401.)</p> <p>The evidence clearly justified the charge of negligence against the defendant. (2 S. & R. on Neg. § 668 ; Vaughn Case, 5 H. & N. 679 ; Jonas Case, L. R. [3 Q. B.] 733.) It was negligence in the defendant to build the easterly track so near to the line of the avenue, and so close to the plaintiff’s building. ( Vaugham, v. Menlone, 3 Bing. [N. C.] 468 ; Filliter v. Phifford, 11 A. & El. 347.) It was clearly, however, gross negligence to move heavy trains up the grade on the easterly track so near the adjoining buildings, without using the safest and most approved spark arresters on the locomotives — especially such as were then in use on its passenger engines. (Caldwell Case, 47 N. Y. 282 ; 2 S. & R. on Neg. § 672.) N prima facie case of negligence ■for the jury was clearly proved against the defendant when it was shown that the locomotives while moving up the grade with heavy trains, and especially when, as frequently happened, they were unable with one at either end, to pull or push the trains forward, vomited forth from their smoke stacks large quantities of sparks and coals, some of the latter as large as walnuts, throwing them in every direction upon the adjoining proDerty and setting the buildings on fire. (O’Neill Case, 115 N. Y. 579 ; Taunn Case, 108 id. 624 ; Webb Case, 49 id. 421.) It was unnecessary to identify the particular engines that set the fire. (Bevier Case, 13 Hun, 254 ; Johnson Case, 54 Fed. Rep. 475, 476.) Even though all needful appliances are used for the retention of sparks, the company will still be liable, if by overcrowding the engine the escape of sparks and fire is produced to a dangerous extent, resulting in damage or destruction to property. (2 S. & R. on Neg. § 674 ; Pindar Case, 53 Ill. 447.) While the burden of showing negligence on the part of the defendant occasioning the injury rests, in the first instance, upon the plaintiff, proof that the injury was a result which would not ordinarily have happened had the machinery been in proper condition and operated with proper care is sufficient, and the burden then rests upon the defendant to prove that the injury was caused without its fault. (Seybolt Case, 95 N. Y. 562, 563 ; 2 S. & R. on Neg. § 676 ; Case v. N. C. R. Co., 59 Barb. 644 ; Field Case, 32 N. Y. 339 ; Reese Case, 85 Ala. 497 ; Goyette Case, 132 Ill. 22.) The proof was abundant to warrant the jury in finding that the fires were caused by the defendant’s locomotives. The plaintiff was not guilty of contributory negligence. The rule of damages was correct. (Uline Case, 101 N. Y. 99 ; Pond Case, 112 id. 186 ; Colrick v. Swinburne, 105 id. 503 ; 1 Sedg. on Dam. [8th ed.] §§ 243, 250, 252.) The jury had a right, in them discretion,.to add interest to the rents lost for six years, and the value of the building finally destroyed in 1884, on the trial. (Wilson v. Troy, 135 N. Y. 96 ; Walrath v. Redfield, 18 id. 458, 462 ; Parrott Case, 46 id. 361, 369 ; Moir's Case, 89 id. 499, 507.) The evidence of the practice of defendant’s servants in knocking holes in the netting over the smoke stack, the mode of operating the locomotives, and the results in the way of throwing sparks and coals and causing fires to property along the track, was proper. (Richardson Case, 91 U. S. 454 ; Hinds v. Barton, 25 N. Y. 544 ; Steele Case, 74 Cal. 323 ; Hoyt v. Jeffers, 30 Mich. 181.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 12,1892, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term overruling a demurrer to defendants’ counterclaim, sustaining said counterclaim and directing judgment in favor of defendants.</p> <p>This action was brought to compel specific performance of a contract, under which defendants agreed to purchase from plaintiff certain real estate in the city of [New York.</p> <p>Defendants set up a defect of title, and, as a counterclaim, asked to recover the amount paid by them on the execution of the contract, and for expenses and counsel fees in the examination of the title. The counterclaim was demurred to by plaintiff and the demurrer overruled.</p> <p>Plaintiffs claimed title under a deed given to carry into effect a sale under a judgment in an action brought to partition said premises. John Mortimer, Jr., died seized and possessed of an interest therein; he left six children and sixteen grandchildren him surviving. The children were made parties to the partition suit, but the grandchildren were not. The residuary clause of the will of said Mortimer is as follows:</p> <p>“ IY. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be in possession, reversion and remainder, I order and direct my executors and trastees to divide into so many shares as I shall have children living at my death, and children who shall have died leaving lawful is§ue living at my decease, such issue to represent such deceased child, and upon such division to allot to each then living child of mine one such equal share, and to the issue then living of any of my children who may have died leaving such lawful issue one such equal share, and I order and direct my executors and trustees to dispose of such shares from time to time, as follows :</p> <p>“ 1st. I give, devise and bequeath one of said equal shares to the lawful issue (living at my death) of each deceased child of mine, to take the same per stirpes and not per capita, to have and to hold the same to them, their respective heirs, executors, administrators and assigns forever, and I direct my executors and trustees to convey, transfer, pay over and deliver the said share accordingly.</p> <p>“ 2d. I give, devise and bequeath one of said equal shares for each of my children living at my decease unto my executors and trustees as a separate fund, to have and to hold the same in trust, to receive the rents, issues and profits thereof, and -to apply the same to the use and support of such child, for and during her and his natural life.</p> <p>“ 3d. Upon the death of my daughter or son for whom the same is held in trust, I order and direct my said executors and trustees to convey, transfer and pay over and deliver the said share to her and his lawful issue per stirpes and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators and assigns forever.</p> <p>“ 4th. Upon the death of any of my said children without lawful issue him or her surviving, I order and direct my said executors and trustees to convey, transfer and pay over and deliver the share so held in trust for such child, to and among some or one of my descendants or the widow of any son of mine according to the directions that may be contained in the said last will and testament of such daughter or son, or in an appointment in the nature of a last will and testament made by her or him, to the person or persons in the share or proportions and according to the terms, provisions and conditions therein directed and contained.</p> <p>“ And I hereby authorize and empower such child of mine so dying to make such last will and testament or appointment in the nature thereof, appointing or directing the disposition aforesaid to or among any of my descendants or the widow of any son of mine, but not otherwise, whether such daughter be a feme sole or feme covert at the time of the making thereof.</p> <p>“ 5th. Upon the death of the daughter or son for whom the said respective share is held in trust without leaving lawful issue at her or his death, and without leaving any last will and testament or appointment in the nature thereof, appointing or directing a disposition of the same to or among the persons above designated, then I order and direct my said executors and trustees to convey, transfer, pay over and deliver the said share to my lawful issue per stirpes and not per capita, to have and to hold the same to such issue, their respective heirs, executors, administrators and assigns forever.</p> <p>“ 6th. I authorize and empower my said executors, and the survivors and survivor of them, from time to time, in their or his discretion, and notwithstanding any direction herein to the contrary, to pay, assign and transfer to either of my sons such part of the securities invested for his benefit as they or he in their or his judgment and discretion shall deem best, that they hold the residue of such securities, if any, for the benefit of my said son in the trust and for the purposes declared of and concerning the whole of his share, and I further authorize my executors and trustees from time to time to pay over to either of my said daughters such part of the said securities invested for their benefit as they may deem best, not exceeding the sum of five thousand dollars, and I direct, authorize and empower my executors on the decease of any son of mine to apply to the use of his widow, if any, my said sons shall leave, during her widowhood, one-third part of the interest and income arising from the part or share of my estate ordered to be set apart for the benefit of my said son, or so much of the same as may remain at the death of my son if any advance shall have been made to him pursuant to this clause of my will, providing the son dying and leaving a widow shall have failed to leave a valid will or to make any valid appointment in the nature thereof, and the residue of such share shall be disposed of by my said executors as hereinbefore directed.”</p> <p>Further material facts are stated in the opinion.</p> <p>The will of the testator created but one valid trust under the statute, namely, the trust to collect the rents, issues and profits of his estate and apply the same to the use of his children. (1 R. S. 728, § 55, sub. 3.) All other trusts contained in the will were void as express trusts and were valid only as powers in trust.. (Townshend v. Frommer, 125 N. Y. 458.) The grandchildren of the testator took no vested interest in his estate. (Konvalinka v. Schlegel, 104 N. Y. 130 ; Smith v. Edwards, 88 id. 104 ; Warner v. Durant, 76 id. 133 ; Gaebel v. Wolf, 113 id. 412 ; U. S. T. Co. v. Roche, 116 id. 120.) The provisions of the will worked an equitable conversion of the real estate, and the grandchildren of the testator were not necessary or proper parties to the action of partition. (Delafield v. Barlow, 107 N. Y. 535.)</p> <p>A reasonable doubt existed as to the validity of the title to the premises in question tendered by the plaintiff under his contract of sale. (Fleming v. Burnham, 100 N. Y. 1, 10 ; Shriver v. Shriver, 86 id. 575 ; Vought v. Williams, 120 id. 253 ; B. P. Comrs. v. Armstrong, 45 id. 234 ; M. E. Church v. Thompson, 108 id. 618 ; Argall v. Raynor, 20 Hun, 267 ; Kilpatrick v. Barron, 125 N. Y. 751.) Unless all the necessary persons were made parties to the action of the partition the proceedings were defective, and the title acquired by the plaintiff under the partition sale was not a good title in fee. (Jordan v. Poillon, 77 N. Y. 518 ; Argall v. Raynor, 20 Hun, 267 ; Mead v. Mitchell, 17 N. Y. 210, 214 ; Moore v. Appleby, 108 id. 237.) The issue of the children of John Mortimer, Jr., v alive at the time of the commencement of the partition suit, took vested estates of inheritance under the will of their ancestor, subject to the life estate for the benefit of their parents respectively, and they were, therefore, necessary parties defendant to the partition suit. (Moore v. Appleby, 108 N. Y. 237.) This court having repeatedly held, in cases of trusts for life tenants with directions to convey on the termination of the life estate to designated remaindermen or to a class, that such remaindermen are necessary parties, if in being, to a foreclosure or partition intended to pass, the title by a sale, the question is open whether the issue of the children of John Mortimer, Jr., were barred by the partition. (Gilman v. Reddington, 24 N. Y. 1,16 ; Stephensons. Leslie, 70 id. 512, 516 ; Moore v. Appleby, 108 id. 237 ; Miller v. Wright, 109 id. 194 ; Genet v. Hunt, 113 id. 158 ; Brunner v. Meigs, 64 id. 506.) Ho question of equitable conversion can be raised by the plaintiff. (Scholle v. Scholle, 113 N. Y. 261 ; Hobson v. Hale, 95 id. 588 ; Chamberlain v. Taylor, 105 id. 185.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. An employer is not required to furnish the best machinery and appliances, and he is not chargeable with negligence if he furnishes machinery and appliances such as are to be found in common use, although, they are not the best upon the market. (Shaffer v. Haish, 110 Penn.

<p>Forgery—Section 631 of Penal Code.</p> <p>To sustain a conviction for forgery under the provision of section 531 of the Penal Code, it must appear that the writing or instrument was forged, or was altered-after its execution.</p>

<p>The result of a lawyer’s services is a proper and an important element to be taken into consideration in determining their value.</p> <p>A judgment should not be reversed upon an exception to a remark of the trial judge, which, although erroneous standing by itself, was so coupled with other statements as to modify it and give the correct rule.</p> <p>In an action by an attorney to recover compensation for professional services, the court charged in substance that in estimating the value of plaintiff’s services, “ several circumstances must enter into the computation, i. e., the professional reputation of plaintiff for ability and integrity, the difficulty and importance of the case, the amount of work and labor performed, the amount involved, the pecuniary ability of the client,” and after a general discussion of these considerations stated, “the main element after all in determining the value of the lawyer’s services is the result,” adding, “ a charge must be adjusted to the benefit, in a measure at all events. * * * Undoubtedly a lawyer *" * * will not charge as much if his client be unsuccessful. * * * You must look to the benefit.” Held, that the charge, taken as a whole, simply conveyed the idea that while the result was an important element to be considered, it was only one of the several elements specified, and so there was no error.</p> <p>A motion for a new trial was made after judgment for plaintiff, on the ground that he had sworn falsely upon his cross-examination on the trial, in denying he had been disbarred as an attorney. Held, that as from the proofs presented on the motion it was a debatable question, admitting of opposing inferences as to whether plaintiff had been actually disbarred, in the legal- sense of that word, it could not be said, as matter of law, that he had sworn falsely, and that the decision of the court below denying the motion was not reviewable here.</p>

<p>In an action to recover possession of a manuscript catalogue of stars, which was made by defendant and his two sisters working to aid him at his request, and was written upon paper purchased and prepared by him, P., the original plaintiff, claimed title on the ground that the work was done for him, by defendant as his servant. This was denied by defendant. P. was director of an observatory, and defendant was his assistant. On the trial defendant testified that in 1885 he, in the presence and hearing of P., showed the catalogue to H., stating that it was his (defendant’s) work, and he had done it at the suggestion of P. that he should do some special work as his own. H., as a witness for defendant, corroborated his testimony as to the conversation. P. was thereafter permitted, under objection and exception, to show.that ata meeting of the Academy of Science in 1886, at which H. was present, he read a paper entitled “ Catalogue of Stars,” and was also permitted to read certain letters written to him in 1886 by H. referring to his catalogue of stars. These letters were objected to on the ground that the attention of H. when a witness had not been called to them. Held, that the reception of the evidence was error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. No agreement, express or implied, was made in New Jersey. (Waldron v. Richings, 9 Abb. Pr. [N. S.] 359.) The contract was to be performed in New York; therefore, the law of New York governs its construction and effect. (Jewell v. Wright, 30 N. Y. 259 ; Dickerson v. Edwards, 77 id. 573.) The statute of New Jersey is not available as a defense.

This action was brought to recover damages for alleged breach of covenants of quiet enjoyment and warranty in a ■deed executed by defendant and his wife.

This action was brought by plaintiffs, insurers of the cargo of the bark QvÁseppe Arma, to recover of defendants a portion of the proceeds of the sale of said cargo, which had been collected by their agent and paid to them.

The facts, so far as material, are stated in the opinion. The statute under which the claimant seeks to maintain his claim contravenes the State Constitution. (Laws of 1889, chap. 380 ; Const.

This action was brought to recover damages for personal injuries received by plaintiff while in the defendant’s employ.. The facts, so far as material, are stated in the opinion. The court erred in refusing-to non-suit the plaintiff. There is no view of the evidence on which a recovery can properly be sustained.

<p>The provisions of the act of 1884 (Chap. 312, Laws of 1884), as amended in 1887 (Chap. 464, Laws of 1887), giving to honorably discharged Union soldiers and sailors a preference for appointment and employment in all public departments, and imposing upon all public officers having the power of appointment the duty of a faithful compliance with the act, does not abrogate or repeal the power to discharge which existed prior to its passage.</p> <p>In the absence of restraints imposed by the Constitution or by statute, the power of appointment to office implies the power of removal when no definite term is attached to the office by law.</p> <p>Accordingly held, that the power given by the Constitution to the agent and warden of a state prison to appoint certain officers thereof, including keepers, gave to the warden the power of removal, and, assuming that the power is subject to legislative regulation, it was not abrogated by said act in the case of an honorably discharged soldier who-had been appointed a keeper in a state prison.</p> <p>Also, held,, that even if the discretion of the appointing power was limited as to removals by said act, these restrictions were removed by the act of' 1889 (Chap. 382, Laws of 1889), which confers power on the agent and warden to appoint and remove keepers.</p> <p>Reported below, 71 Hun, 202.</p>

This action was brought to recover damages to certain lots belonging to plaintiff on Spring street, in the city, formerly the village, of Amsterdam, alleged to have been caused by changing the grade of the street, and also to vacate an assessment upon said lots for sidewalks constructed in front of them on Spring and Kimball streets.

<p>Appeal from order of the General Term of the Supreme Oourt in the third judicial department, made December 5, 1893, which reversed an order of Special Term granting an application for a writ of mandamus, the nature of which and the facts, so far as material, are stated in the opinion.</p> <p>The words of subdivision 8 of section 70, chapter 690, Laws of 1892, must be construed to provide for the incorporation of companies to insure against casualties lawfully the subject of insurance, not otherwise provided for in the preceding subdivisions. (McClusky v. Cromwell, 11 N. Y. 601 ; Purdy v. People, 4 Hill, 397 ; Potter’s Dwarris on Stat. 192.) The casualties sought to be insured against by the proposed company may lawfully be the subject of insurance; the certificate and charter presented are in accordance rvith law. (Laws of 1892, chap. 690, § 70.) When a ministerial duty is imposed on an officer, which he refuses to perform, on a question not of fact, but of law, then mandamus, and not certiorari, is the proper remedy. (Laws of 1893, chap. 725, § 10 ; Howland v. Eldridge, 43 N. Y. 457 ; People ex rel. v. Chapin, 104 id. 96 ; People ex rel. v. Chapin, 103 id. 635 ; People v. Tremaine, 17 How. Pr. 142 ; Weed v. Beach, 56 id. 470 ; People v. C. Board, 27 N. Y. 378 ; People ex rel. v. C. Board, 46 Barb. 254 ; People v. C. Board, 33 N. Y. 382 ; People ex rel. v. Barnes, 114 id. 317 ; Swift v. Mayor, etc., 83 id. 535 ; People ex rel. v. Beach, 19 Hun, 259 ; 57 How. Pr. 337 ; People ex rel. v. Rice, 138 N. Y. 151 ; People ex rel. v. Wemple, 115 id. 302 ; People ex rel. v. Wemple, 125 id. 485.)</p> <p>The General Term properly held that the objection that mandamus was not the proper remedy was well taken. (People ex rel. v. Chapin, 104 N. Y. 96 ; In re Howland, 43 id. 457 ; People ex rel. v. Leonard, 74 id. 443 ; People ex rel. v. Hoyt, 66 id. 606.) The declaration and charter. presented for approval did not comply with the provisions of the Insurance Law. (Laws of 1892, chap. 690 ; F. Co. v. Hyde Park, 97 U. S. 666.)</p>

<p>1. Jurisdiction—Relationship.</p> <p>Section 46 of the Code of Civil Procedure applies to all trials, civil and criminal.</p> <p>2. Trial—Mode—Criminal action.</p> <p>The defendant is not entitled to separate trials before separate juries, of each issue raised by the pleadings, but to only one trial and one jury.</p> <p>3. Same.</p> <p>The order in which the issues should be disposed of is a matter in the discretion of the court.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made January 18, 1893, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at Circuit.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in admitting the contract with Donohue in evidence, for the reason that no such defense was set forth in the answer. (Weaver v. Barden, 49 N. Y. 286 ; Griffin v. L. I. R. R. Co., 101 id. 354 ; Hay v. C. Co., 2 id. 160 ; Tremain v. C. Co., Id. 163 ; St. Peter v. Dennison, 58 id. 423 ; Clifford v. Dam, 81 id. 52 ; Ginterman v. N. Y. & P. S. Co., 9 Daly, 119.) The defendant is liable, irrespective of the contract. It is not necessary to prove negligence to maintain an action for a trespass of this kind. (Hay v. C. Co., 2 N. Y. 160 ; Tremain v. C. Co., Id. 163 ; St. Peter v. Dennison, 58 id. 423 ; Robbins v. City of Chicago, 4 Wall. 679 ; W. Co. v. Ware, 16 id. 566 ; S. & R. on Neg. [4th ed.] § 176 ; Brusso v. City of Buffalo, 90 N. Y. 119.)</p> <p>The contract was clearly admissible under the pleadings. (Griffin v. L. I. R. R. Co., 101 N. Y. 348 ; Robinson v. Frost, 14 Barb. 536 ; Wheeler v. Billings, 38 N. Y. 263 ; Weaver v. Barden, 49 id. 286 ; Milbank v. Jones, 141 id. 340 ; Clare v. N. C. Bank, 14 Abb. Pr. [N. S.] 326.) The act contracted for being in itself lawful, and if properly done not likely to cause injury, the owner who gave out the contract is not liable for injuries sustained by the careless or negligent performance of the work on the part of the workman employed by the contractor. (King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181 ; Hexameter v. Webb, 101 id. 377 ; Charlock v. Freel, 125 id. 357 ; Dickson v. Mayor, etc., 92 id. 584 ; Nolan v. King, 97 id. 565.) The appellant cannot succeed upon the theory that the respondent promised to pay. (Code Civ. Pro. § 723 ; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646 ; Southwick v. F. N. Bank, 84 id. 420.)</p>

This was an action of ejectment. The premises in .question were claimed to have been purchased by plaintiff from one Osmer Dixon, who died in 1849. Defendant claims under a deed from Phineas Dixon, the only heir at law of said Osmer Dixon, to one Aaron JVI. Hyatt. The further facts, so far as material, are stated in the opinion. The complaint does not sufficiently describe the land claimed by plaintiff to be wrongfully withheld by the defendant. (Code Civ.

Court in the second judicial department, entered upon an order made December 12,1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial. This action was brought by plaintiffs, as executrices of Anna Hillen, deceased, to recover damages for the alleged conversion of certain railroad bonds. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The streets now claimed hy defendant were not used by the public for more than six years and parts were never opened, and thus ceased to be public streets for any purpose. (Horey v. Vil. of Haverstraw, 124 N. Y. 273.) The order of discontinuance was effectual. The General Village Act gave the trustees the power.

This was an action brought upon a judgment recovered by plaintiff against the defendants in a court of the state of Michigan on August 9, 1887. The facts, so far as material, are stated in the opinion.

This was an action of ejectment. The facts, so far as material, are stated in the opinion. The delivery of a deed is a question of intention. (Devlin on Deeds, §§ 260, 261, 324.) The handing of a deed to the grantee named therein does not of itself constitute a valid and legal delivery. (Devlin on Deeds, §§ 262, 269, 324 ; Denis v. Vilati, 96 Cal, 223 ; Ford v. James, 2 Abb. Ct. App.

The nature of the action and the facts, so far as material,, are stated in the opinion. The infant cannot be divested of his ownership of these lands under the power in question. (Hetzel v. Barber, 69 N. Y. 1 ; Code Civ. Pro. § 2348 ; Horton v. McCoy, 47 N. Y. 26.) Mary E. Cotton having died prior to the making of the contract the power given to the said Margaret Cotton could not be exercised, and fell.

This action was brought to have canceled as a cloud upon title and satisfied of record a bond and mortgage executed by the plaintiffs to the defendant Henry Gottlieb, and assigned by him to the defendant Bettie Stern. The facts, so far as material, are stated in the opinion. It is undoubtedly well settled that an assignee of a mortgage must take it subject to the equities attending the original transaction. This case is an exception to the rule.

This action was brought, among other things, to recover the amount of a draft drawn by F. F. Cole and accepted by defendant in payment for a cargo of peas, which was paid by plaintiff and transferred to him by the Ontario Bank, on which it was drawn. The facts, so far as material, are stated in the opinion. The uncontradicted evidence showed that if the peas were received by defendant the delivery was contrary to the provisions of section 663 of the Penal Code.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs should not have the relief prayed for because damages for this identical cause of action have already been awarded and paid them in the proceedings to condemn the land. (Embury v. Conner, 3 N. Y. 511 ; Clemens v. Clemens, 37 id. 59.) Our exceptions to the admission of evidence as to the difference in value of the farm with and without an undercrossing are well taken.

This was an action of ejectment. Prior to July 13,1835, the Tonawanda Railroad Company acquired by condemnation proceedings for the use and accommodation of its railroad the land, being twenty-five feet in width, now in question. The defendant has succeeded to the rights of that railroad company, and the plaintiff has succeeded to the rights of the original owner of the land, subject to whatever rights therein belong to the defendant.

This action was brought to recover damages for alleged breach of a contract. Plaintiff, who was engaged in the stationery business, on April 6,1887, entered into an agreement with defendant, who was a jeweller and occupied a store in the city of Brooklyn, which is set forth in the complaint.

This action was brought by plaintiff as holder of a bond of defendant, the Persian Rug and Carpet Company, secured by a mortgage executed by Said company to the defendant Paul M. Iirause, as trustee, to foreclose said mortgage. The facts, so far as material, are stated in the opinion. The complaint was properly dismissed on the ground that the plaintiff could not maintain the action without service of the summons on the trustee.

This was an action upon a guaranty executed by defendants and annexed to a building contract entered into by plaintiff with the firm of D. G. Ross & Go. The guaranty in question and the facts, so far as material, are stated in the opinion. Whatever damages plaintiff has sustained by reason of the inexcusable failure of Miller The defendants are not liable. They made a .distinct contract of guaranty, and can he made liable only by its ‘express terms.

This action was brought by plaintiffs, as the administrators of William Stuber, deceased, to recover damages for his death, which was alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion.

<p>Defendant executed to plaintiff a guaranty of the payment by W., a plumber, "for any and all materials which they may deliver” to him; defendant, however, “ not to be liable for any balance exceeding five hundred dollars which may become due.” In an action upon the guaranty, held, that its language was so clear and unambiguous as to furnish conclusive evidence of its meaning; that it was a continuing guaranty, limited to a balance “ which may become due, ” not exceeding the sum specified, but it did not undertake to regulate the amount of W.’s future transactions with plaintiff; and so, that the receipt of evidence and a finding to the effect that the instrument was not intended as a continuing guaranty, other than for goods sold to be used in the performance of a certain contract, were errors.</p>

<p>Upon motion to set aside an attachment granted, on the ground that defendant was a non-resident, it appeared that plaintiffs brought the action, as assignees of the claim set forth in the complaint; that their assignors had previously brought suit thereon and obtained an attachment, which was vacated on motion, and before the motion cbsts were paid this action was brought. Held, that while plaintiffs’ assignors were stayed (Code Civ. Pro. § 779), the stay did not render the present action and the proceedings thereon void, and did not deprive the court, of jurisdiction, but only rendered further proceedings irregular; and so did not affect the validity of the attachment; and that it was competent for the court below to deny the motion, in case plaintiffs paid the costs of the former action within twenty days.</p>

This action was brought to recover for goods sold and delivered by plaintiff to defendants. The complaint was on information and belief and was verified by one of the plaintiff’s attorneys; who, in the verification, stated the reason for his making it to be the absence of the plaintiff in Massachusetts and that his belief was based upon the statements made to him by the plaintiff and by his Boston * attorney.

Curtis, deceased. The facts, so far as material, are stated in the opinion. Under section 2 of chapter 483, Laws of 1885, the tax upon the remainders herein became due and payable immediately upon the death of the testatrix. (In re Knoedler, 140 N. Y. 380 ; Crooke v. County of Kings,. 97 id. 449 ; Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 178 ; Bailey v. Bailey, 28 Hun, 614 ; Griffin v. Shepard, 40 id. 355 ; 124 N. Y. 70 ; Tracy v. Ames, 4 Lans. 505 ; Lakey v. Scott, 15 Wkly.

The nature of the action and the facts, so far as material, are stated in the opinion. The court has power to refer issues to hear and determine where the trial will require the examination of a long account and will not require the decision of difficult questions of law. (Code Civ. Pro. § 1013 ; Townsend v. Hendricks, 40 How.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made October 13,1893, which confirmed a determination of the board of police commissioners of the city of Hew York, designating certain newspapers for the publication of election notices, which proceedings were brought up for review by certiorari.</p> <p>The Election Law of 1892 provides for the publication of the list of candidates to be voted for at any general election. The relator is the publisher of the Hew York World, and in the fall of 1892 it claimed that it was one of the papers published in the city of Hew York in which the lists of nominations of candidates should be published as required by that law; and on the 6th day of September an affidavit was made by its business manager, in which it was stated that the World was published in the city of Hew York; that it advocated the principles of the political party which at the last preceding election cast the largest number of votes in the state of Hew York, and that its daily circulation exceeded by many thousands that of any other newspaper published in the United States; and the affidavit contained a statement that the relator was ready at any time, upon demand, to submit to the police commissioners or any one designated by them, in substantiation of its claims, all its books and accounts relating to its circulation. The affidavit was on the day of its verification delivered to and left with the police commissioners, with a letter signed by the business manager of the World, notifying them that it should be designated for the publication of all election notices for the reasons stated in the affidavit. From that time to the 25tli day of October following, there does not seem to have been any communication between any representative of the World and the police commissioners; and on the latter day at their meeting its business manager again appeared before them and requested them to allow him to produce evidence, proving that the circulation of that paper in the city of New York was larger than that of any other daily newspaper published in the city, and that its circulation was 75,000 in excess of the Sun and the Daily News. But the board would not allow him to produce such evidence. Before he appeared there, and before the request was made by him, the board had designated the New York Sun and the New York Daily News as representing the Democratic party, and the New York Tribune and the Press as representing the Republican party.</p> <p>Thereafter, on the 2d day of November, the relator applied for a writ of certiorari to review the determination of the police commissioners in designating the papers named, and in its verified petition for the writ it alleged the facts herein-before stated, and further, that the letter and affidavit of the relator’s manager of September Gth were before the commissioners at the time of the designation of the other papers, and that no other affidavit was at that time before them; that they did not obtain the best information that they could relative to the papers having the largest" circulation within the city, and that they did not obtain any such information as a board other than that furnished by the affidavit of the relator’s manager, and that none of the newspapers designated liad the largest circulation within the city of ¡New York. The commissioners made return to the writ, in which they admitted that there was left at then’ office in the city of ¡New York the letter and affidavit hereinbefore mentioned, and that they designated for publication of the lists of candidates the Sun, ¡News, Tribune and Press; and they averred that on the 25th day of October, 1892, the only written papers in regard to the subject-matter before them were the letter and affidavit before mentioned; that at the time of the passage of the resolution designating the four papers no one appeared for the relator to substantiate the statements contained in the letter and affidavit; that after the resolution designating those papers had been adopted the manager of the World requested to be heard and was heard, but did not produce any witnesses or further evidence, and they declined to reconsider then’ action; that in designating the papers for the publication they selected those which, according to the best information they could obtain, had the largest circulation within the city and county of ¡New York.</p> <p>Upon the affidavit upon which the writ was issued, and the return to the writ, the General Term affirmed the determination of the board of police commissioners, and this appeal is from the decision of the General Term.</p> <p>The writ of certiorari to review will issue when the writ would have issued at common law, and the right to the writ, or the power to issue it, has not been taken away by statute, when the determination is final, and when there is no appeal from such determination to a court, or review of it by any body, or officer, and when no rehearing is expressly provided for by statute. . (Code Civ. Pro. §§ 2120, 2122.) In addition the action sought to be reviewed must be judicial. (People ex rel. v. Board, 33 Barb. 344 ; People ex rel. v. Mayor, 2 Hill, 9 ; People ex rel. v. Common Council, 78 N. Y. 33, 39 ; People ex rel. v. McLean, 62 Hun, 45 ; 1 Ld. Raym. 580 ; 1 Salk. 146 ; Law ton v. Commrs., 2 Caines, 182 ; Wildy v. Washburn, 16 Johns. 49 ; People v. Judges, 24 Wend. 249 ; People ex rel. v. Van Alstyne, 32 Barb. 131.) The court must inquire into the facts as well as to the jurisdiction, to see whether the determination was supported by evidence or was against the preponderating weight of evidence. (Code Civ. Pro. § 2140 ; In re People v. Board of Assessors, 39 N. Y, 88 ; People ex rel. v. Van Alstyne, 32 Barb. 131 ; People ex rel. v. Smith, 45 N. Y. 772 ; People ex rel. v. Eddy, 57 Barb. 593 ; People ex rel. v. Bd. of Police, 39 N. Y. 506 ; People ex rel. v. Bd. of Police, 72 id. 415.) In any case we submit that the court will review the determination of the inferior tribunal, even though the judgment of such tribunal is void or rescinded by it, in order that the relator’s rights may be determined. (People ex rel. v. Canal Board, 7 Lans. 220 ; People v. Judges, 24 Wend. 249 ; People ex rel. v. 16 Wkly. Dig. 390 ; People ex rel. v. Jones, 112 N. Y. 597.) The courts, by means of certiorari, will exercise a salutary influence and superintendence over inferior jurisdictions, from whose decisions there is no appeal. (Lawton v. Comrs., 2 Caines, 179, 182 ; 1 Ld. Raym. 580.) The board of police commissioners acting under the statute should have acted upon legal evidence as the best information it could obtain. (People ex rel. v. Troy, 78 N. Y. 833 ; Code Civ. Pro. §§ 843, 854.) The relator has such a personal interest in the publication of the lists of nominations that it can maintain a proceeding in its name to review a determination designating newspapers for such publication. (In re Sullivan, 55 Hun, 285.) As it appears from the face of the return that the only evidence before the board was introduced on behalf of the relator and required the selection of the newspaper published by it for the publication of the lists of nominations, and as, by the return, no other evidence is set out from which a finding could be made, it follows that the determination of the board in designating newspapers other than that published by the relator should be annulled. (Mullins v. People, 24 N. Y. 399 ; People ex rel. v. Overseers of Ontario, 15 Barb. 286 ; People ex rel. v. Board of Police, 39 N. Y. 506 ; People ex rel. v. Howland, 61 Barb. 273.)</p> <p>The appeal should be dismissed upon the ground that no question of practical importance is now involved in the controversy. (People ex rel. v. Squire, 110 N. Y. 666 ; People ex rel. v. Walter, 68 id. 403 ; People ex rel. v. Phillips, 67 id. 582 ; Ex parte Hetz, 111 U. S. 766.) The police commissioners in this case acted as ' ministerial officers and not as a judicial body, so that their action cannot be reviewed on a writ of certiorari. (People ex rel. v. Jones, 112 N. Y. 597 ; People ex rel. v. Suprs. Queens Co., 131 id. 468 ; People ex rel. v. Walter, 68 id. 403 ; I. P. Co. v. Harris, 62 Iowa, 501 ; Smith v. Yoram, 37 id. 98 ; Atty.-Genl. v. Mayor, etc., 143 Mass. 589.)</p>

The facts, so far as material, are stated in the prevailing opinion. Trial by referee is an exceptional mode of judicial procedure, and when it is sought to coerce a suitor into a submission to it the burden is upon the party applying for a reference to show that the case is within the excepted class. (Cassidy v. McFarland, 139 N. Y. 201.) It is not enough to justify a_ compulsory reference that the case may involve the examination of a long account.

This action was brought to recover damages to property held by plaintiff, as lessee, and caused by the tearing down of an adjoining building. The facts, so far as material, are stated in the opinion. The common owner of two independent adjoining buildings, conveying or leasing one of them, does not, under ordinary circumstances, grant an easement in his adjoining property of any kind.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made August 25, 1893, which affirmed an order of Special Term sustaining a demurrer by defendant to an alternative writ of mandamus.</p> <p>The relator applied, under the act of 1891, an act amending chapter 487 of the Laws of 1884, entitled “ An act authorizing the construction of a drawbridge over Newtown creek in Queens county,” as amended by chapter 184 of the Laws of 1887 (Chap. 290, Laws of 1891), for a mandamus requiring the.boards of supervisors of the counties of Kings and Queens to construct and maintain a bridge across Newtown creek on Maspeth avenue.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The writ and papers presented by the relator show that Maspeth avenue is a public highway. (Laws of 1872, chap. 780 ; Laws of 1838, chap. 262.) The demurrer admits all the facts stated in the writ and affidavits. (Meyr v. S. I. R. Co., 7 N. Y. S. R. 245 ; Cutter v. Wright, 22 N. Y. 472 ; Hall v. Bartlett, 9 Barb. 297.) In a matter of public tight, any citizen of the state may be a relator in an application for a mandamus (where that is the appropriate remedy) to enforce the execution of the common law or of an act of the legislature. (People ex rel. v. Collins, 19 Wend. 56 ; People v. Halsey, 37 N. Y. 344 ; People ex rel. v. Supervisors, 56 id. 249 ; People ex rel. v. Common Council, 77 id. 511 ; 133 id. 214 ; Hamilton v. State, 3 Ind. 452 ; 5 id. 310 ; 123 Mass. 460 ; 78 Ill. 382.) The boards of supervisors of the two counties' are in duty bound to provide for the care, maintenance, preservation and reparation of any draw or other bridge intersecting the boundary line of the counties over navigable tide waters, where such bridge is or is a part of a public highway, and in case of refusal of one or both boards to act, they can be compelled by the writ of" mandamus to perform that duty. (Laws of 1880, chap. 320 ; People v. Supervisors, 1 Hill, 50 ; People ex rel. v. Supervisors, 8 N. Y. 317 ; Boyce v. Supervisors, 20 Barb. 294 ; People ex rel. v. Board of Supervisors, 32 N. Y. 473 ; Gray v. State, 72 Ind. 567 ; 72 Penn. St. 24 ; 32 Smith [Pa.], 132.) The ¡mint insisted on by the court below, and the learned counsel for the respondent, that the approval of plans must first be obtained from the secretary of war of the United States, is Avithout force. (Comm. v. New Bedford, 2 Gray, 339 ; Flanagan v. Philadelphia, 42 Penn. St. 219.) The requisite duty is imposed upon the supervisors muder the general laAArs or statutes of the state. (Laws of 1876, chap. 275, § 5 ; Laws 1879, chap. 364 ; Laws 1880, chap. 320 ; People ex rel. v. Supervisors, 51 N. Y. 402.) The direction of the writ to the board of supervisors is the proper remedy. (Hill v. Board of Supervisors, 12 N. Y. 52 ; People ex rel. v. Supervisors, 51 id. 402 ; People ex rel. v. Supervisors, 20 id. 252 ; People ex rel. v. Supervisors, 73 id. 173 ; Code Civ. Pro. § 2090.) The petition or affidavit and papers state all the facts necessary to justify the granting of the relief prayed for. (51 N. Y. 402 ; 112 id. 585 ; Com. v. New Bedford Bridge, 2 Gray, 339 ; 78 Penn. St. 457 ; 70 N. Y. 430 ; 1 Hill, 50 ; 17 Hun, 83 ; 45 id. 323.)</p> <p>The bridge in question cannot legally he constructed until the location and plans of such bridge have been submitted to and approved by the secretary of war, nor can any steps in such direction be taken until such approval by the secretary' of war of the United States of America, the stream in question being navigable waters. (§ 7 of the act of congress of the United States, adopted September 19, 1890.) This act of congress is paramount, and no bridge can be legally built until the consent of the secretary of war has been obtained thereto. (People ex rel. v. Kelly, 76 N. Y. 475-482.) The mandamus is sought to compel the building of a bridge in violation of the United States laws, and mandamus will not lie to compel the violation of law. (People v. Fowler, 55 N. Y. 252-254 ; Howland v. Eldridge, 43 id. 457.) The relator has failed to show that he is legally and equitably entitled to have the bridge built. To entitle a relator to the writ he must show himself legally and equitably entitled to some right properly ■the subject of the writ, and that it is legally demon dable from the person to whom the writ must be directed. (People ex rel. v. Hayt, 66 N. Y. 607.) The common-law responsibility of counties for the repair of bridges never prevailed in this state. (Hill v. Supervisors, 12 N. Y. 52-57.) Were boards of supervisors charged as are highway commissioners, with the duty of building roads and bridges, the writ — assuming the special act (Chap. 290, Laws of 1891) to be valid — might lie, but boards of supervisors are not charged with such duties. Their powers in respect to roads and bridges are purely legislative, and not ministerial, and they alone can legally determine when, where and under what circumstances they will exercise such legislative powers. While a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which an officer may exercise judgment or discretion. (People ex rel. v. Fairchild, 67 N. Y. 334 ; People ex rel. v. Leonard, 74 id. 443-445 ; Laws of 1892, vol. 2, p. 2213, Highway Law, article “ bridges.”) That the power conferred on boards of supervisors to provide for the building of bridges, by chapter 482 of the .Laws of 1875, is legislative and not ministerial is conclusively proven by the conditions existing at the time of its adoption. (Canst. N. Y. art. 18, § 3; Id. art. 3, §§ 18, 23.) The special act authorizing the construction of the Maspeth avenue bridge is a local act and is unconstitutional. (People v. P. R. Co., 86 N. Y. 1-7.) While a writ of mandamus may go to compel the exercise of their discretion by subordinate bodies and tribunals, it never requires a decision in any specified manner. (People v. Common Council, 78 N. Y. 39.)</p>

This action was brought by plaintiff, as assignee of the ¡Nejitune Steam ¡Navigation Company, to recover damages for an alleged breach of a charter party made between it as owners of the steamship “ Albans ” and defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The transfer by Bishop & Crawford to Tilge & Go. of the accounts delivered to them on account of their debt was not invalidated by the fact that Bishop & Crawford afterward executed a general assignment.

This action was brought by plaintiff as assignee of all the rights of John S. Elliott, under a lease executed to him by' defendant, to compel defendant to execute to him a warranty deed of the premises covered by the lease, or to recover $2,955.20 and interest as damages.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned General Term erred in reversing the order on the ground that the' statute does not provide for a physical examination apart from the plaintiff’s examination as a witness at the instance of the defendant. (Laws of 1893, chap. 721 ; Code Civ. Pro. §§ 872, 873.) The order of the Special Term was in the form prescribed by the statute. (Code Civ.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 18,1892, which affirmed an interlocutory judgment, entered upon an order of Special Term, overruling plaintiffs’ demurrer to the answer herein, and directed a final judgment in favor of defendant.</p> <p>The question presented upon this appeal arises upon the following facts; September 16,1887, one Denninger, being the owner of certain lands in the city of New York, on that day executed, together with his wife, to the Harlem Savings Bank a mortgage thereon for $5,000. Afterwards proceedings were instituted in behalf of the mayor, aldermen and commonalty of the city of New York for the purpose of acquiring title to lands required for Melrose avenue, which was laid out through the lands of Denninger. On June 7, 1888, commissioners of estimate and assessment were appointed in the proceedings. On November 16,1888, Denninger entered into an agreement, in writing, with the defendant, an attorney of the court, whereby he authorized him to take proceedings to have any awards which might be made to Denninger for the part of his property to be taken for the avenue increased, and any assessment upon any of his property reduced, and agreed that in case the defendant should succeed “in obtaining any increase of such awards, or reduction of such assessments, to pay him (defendant) one-quarter of the amount of such increase or reduction.” The commissioners made them preliminary report, of which notice was given February 14,1890, in which they awarded to Denninger for the part of his land to be taken for the avenue the stun of $8,100. The defendant thereupon appeared before the commissioners, and as the result of his efforts the award was increased $3,484 over that originally made. The final report of the commissioners was dated Oct. 1,1890, and was confirmed by order of the court Hay 1,1891. Meanwhile, on February 4,1891, after the date of the final report, but before its confirmation, an action was commenced against Denninger and others for the foreclosure of the mortgage to the Harlem Savings Bank. The city of Hew York was not made a party to the foreclosure action. March 28, 1891, judgment of -foreclosure and sale was entered. April 21, 1891, the mortgaged premises were sold at public sale, pursuant to the judgment, to one Jacob L. Toch. The amount bid does not appear. The sum ascertained by the ,, judgment to be due on the mortgage was $5,461.73. May 25, 1891, t-lie referee appointed in the foreclosure judgment to make the sale executed to the purchaser a deed in which was recited the prior judgment and proceedings and which purported to convey to Toch the whole premises embraced in the mortgage to the Harlem Savings Bank. The city has paid into court the amount of the award made to Denninger. The defendant claims a lien on the award under his agreement with Denninger of Hov. 16, 1888, to the extent of $871, with interest,. that being one-fourtli of the increase of the final award over the original award made by the commissioners.</p> <p>The plaintiffs, who have succeeded to the rights of Jacob L. Toch, the purchaser on the foreclosure sale, claim that by his purchase and^ the conveyance made pursuant thereto, the title to the whole award became vested in him, free from any lien in favor of the defendant.</p> <p>At the time of the foreclosure sale the city had not yet acquired any title to the land for which this award was subsequently made. (Laws of 1882, chap. 410, § 990 ; In re Eleventh Ave., 81 N. Y. 436.) The entire premises, including the portion subsequently taken for Melrose avenue, were properly sold by the referee without regard to the pending condemnation proceedings. (Laws of 1882, chap. 410, § 990.) The referee’s deed, although delivered after the confirmation of the commissioners’ report, vested in the purchaser as full and perfect a title to the award as though it had been delivered before such confirmation. (Engelhard v. City of Brooklyn, 3 Misc. Rep. 30 ; Banks v. Roberts, 44 N. Y. 192 ; McLauren v. H. Ins. Co., 5 id. 151 ; Sears v. Burnham, 17 id. 455.) The defendant was not a necessary or proper party to the foreclosure suit (Randall v. Van Wagener, 115 N. Y. 527 ; Pulver v. Harris, 52 id. 73 ; Platt v. Jerome, 19 How. [U. S.] 384 ; Martin v. Hawks, 15 Johns. 405 ; People ex rel. v. N. Y. C. P., 13 Wend. 652.) This appeal was properly taken. (Code Civ. Pro. § 1336.)</p> <p>The defendant had an equitable lien upon the award for services in procuring the increase. (McGregor v. Comstock, 28 N. Y. 237 ; Ely v. Coke, Id. 265, 372, 373 ; Marshal v. Meech, 51 id. 141, 143 ; Wright v. Wright, 70 id. 140 ; Coughlin v. N. Y. C. R. R. Co., .71 id. 443, 448 ; Fairbanks v. Sargent, 104 id. 108 ; 117 id. 320 ; Boyle v. Boyle, 106 id. 654 ; Chester v. Jumell, 125 id. 237 ; Harwood v. La Grange, 137 id. 538 ; Overton on Liens, §§ 52, 54, 57 ; H. Ins. Co. v. Smith, 28 Hun, 296 ; Rooney v. S. A. R. R. Co., 18 N. Y. 368, 371.) It is settled that an agreement that an attorney shall be compensated out of a fund to be recovered creates a lien thereon. (Williams v. Ingersol, 23 Hun, 284 ; Fairbanks v. Sargent, 29 id. 588 ; 104 N. Y. 108 ; Brown v. Mayor, etc., 11 Hup, 21 ; Wylie v. Coxe, 15 How. [U. S.] 415.) The defendant is an equitable assignee of the award to the amount of $871 agreed to be paid him. (Overton on Liens, § 62 ; Coughlin v. N. Y. C. R. R. Co., 71 N. Y. 443, 449 ; Wright v. Wright, 70 id. 98 ; Marshal v. Meech, 41 id. 140, 143 ; Rooney v. S. A. R. R. Co., 18 id. 368.) Even if there had been no express agreement, equity would create a lien on the fund, because on general considerations of justice defendant should be compensated for what he had done. (13 Am. Ency. of Law [Liens], 610.) The lien will prevail not only against Denninger, hut also against all persons, including plaintiff, who claim under him. (Meacham on Agency, § 864 ; Schwartz v. Schwartz, 21 Hun, 133 ; Williams v. Crane, 23 id. 284 ; Ellis v. Horrman, 90 N. Y. 466.) The defendant being the equitable assignee of the award to the extent of his agreed compensation, prior in time to the transfer of the award' to plaintiffs, will be protected though he had given no notice to the subsequent assignees, the plaintiffs. (Fairbanks v. Sargent, 104 N. Y. 108.) The purchaser, at the foreclosure sale acquired no title to the land taken for Melrose avenue or the award made for said land, and the deed to plaintiffs conveyed no more than their grantor had — nothing. (Laws of 1882, chap. 410, § 990 ; In re Eleventh Ave., 81 N. Y. 436 ; H. Ins. Co. v. Smith, 28 Hun, 296 ; 3 Pom. Eq. Juris. 135, § 1167 ; Ballou v. Ballou, 78 N. Y. 325 ; King v. Mayor, etc., 102 id. 171, 175 ; Aspinwall v. Balch, 4 Abb. [N. C.] 193,196 ; Mitchell v. Bartlett, 51 N. Y. 452 ; Cheney v. Woodruff, 45 id. 100 ; M. L. Ins. Co. v. Balch, 4 Abb. [N. C.] 200.)</p>

This action was brought for a dissolution of the firm of H. W. Gray & Co., stockbrokers, which was composed of the plaintiff and defendant. The complaint demanded that the partnership be adjudged dissolved, an accounting had and that plaintiff have judgment for a balance claimed to be due. The facts, so far as material, are stated in the opinion. On the conceded facts the Statute of Limitations of ten years had run. The action was commenced August 5, 1884. (Code Civ.

This action was brought for a construction of the will of Josej>h Benjamin, deceased. The facts and portions of the will, so far as material, are stated in the opinion. In the construction of wills the cardinal rule is that the intention of the testator, as expressed in the instrument, shall govern.

George H. Forster died in the city of Few York in Fovember, 1888, leaving a widow and two sons, Henry A. Forster and Frederick E. Forster, and also leaving a will, the sixth clause of which is as follows: “ Sixth.

<p>Where an appeal is based simply upon an exception to a denial of a motion, made at the close of all the evidence on trial, for a direction of a verdict in favor of the appellant, it cannot be sustained unless it appears not only that there were no controverted questions of fact, simply questions of law for the court, but also that the jury did not correctly determine those questions.</p> <p>If a question of law has been erroneously submitted to the jury, and decided as it should have been by the court, no one is prejudiced by the error, and so, there is no ground for appeal.</p> <p>.A contract for the sale of several distinct and separate items of property is entire where the promise by the purchaser is made conditional upon entire performance by the vendor.</p> <p>In the absence of such a condition and where the price to be paid is appor- * tioned to each item or is left to be implied by law, the contract is severable, and when the purchaser has received and accepted one of the items, it is no defense to an action to recover the purchase price that the other items have not been delivered; he is pimply entitled to his damages, if any, because of the non-delivery.</p> <p>Reported below, 68 Hun, 161.</p>

<p>The provision of the general act for the incorporation of villages (§ 33, tit. 8, chap. 291, Laws of 1870, as amended by chap. 870, Laws of 1871), which provides that “ boards of supervisors of the several counties are hereby authorized and empowered to extend the boundaries of any incorporated village within their respective counties,” only applies to villages incorporated under said act, not to those organized under a special charter.</p> <p>The power so to extend the boundaries of a village specially chartered is not given by the provision of the act of 1884 (Chap. 308, Laws of 1884), declaring " that the trustees and officers of any village of this state created by special charter, shall have and possess the same powers as are prescribed in any general act for the incorporation of villages,” etc. The added powers are given to the village officers, not to the board of supervisors, and they do not include the enlargement of the village boundaries.</p> <p>Where, therefore, the board of supervisors ot Westchester county, on petition of the trustees of the village of Peekskill, organized under a special charter (Chap. 117, Laws of 1883), passed an act extending its boundaries, and the village assessors Included in their assessment roll the lands so attempted to be brought within the corporate limits, Tield, that said assessments were illegal and were properly stricken from the roll.</p>

The facts, so far as material, are stated in the opinion. A statute is always presumed to be prospective in its operation unless the contrary is expressly provided, or is necessarily to be inferred. (McMahon v. Beekman, 65 How.

The facts, so far as material, are stated in the opinion. The commissioners have failed to weigh the testimony offered before them according to legal rules, and to give effect to explanations which clearly show that though relator did strike Mildrum, yet the circumstances which are proved explain away the offense charged. (People ex rel. v. MacLean, 42 N. Y. S. R. 690 ; People ex rel. v. French, 123 N. Y. 636.) It was error to compel relator to testify against himself.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in admitting oral evidence to contradict a sealed, instrument.

Davis. It appeared that Davis had, without right, placed the boat upon a mill pond, which was the property of one Edward Kane. The latter put the pond in charge of his son, one of the defendants, with instructions not to allow trespassers upon it. Davis owned a farm adjoining said pond, and persisted in sailing his boat thereon, although several notices had been given him to remove it from the pond.

The nature of the action and the facts, so far as material, are stated in the opinion. The execution of the power reserved in the deed of John Towler could not possibly suspend the power of alienation of the land for two lives in being.

<p>Appeal from judgment of the General Term of the Supreme 'Court in the first judicial department, entered upon an order made April 14,1893, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a verdict, 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>The court erred in its conception and application of the law governing the defendant’s liability. (Smith v. N. Y. C. R. R. Co., 24 N. Y. 222 ; Bowen v. N. Y. C. R. R. Co., 18 id. 408 ; Cleveland v. N. J. S. Co., 68 id. 311, 313 ; Dougan v. C., etc., Co., 56 id. 1, 7, 8 ; Crocheron v. N. S., etc., F. Co., Id. 656 ; Laflin v. B., etc., R. Co., 106 id. 135 ; Seybolt v. N. Y., L. E. & W. R. Co., 95 N. Y. 562 ; Searles v. M. R. Co., 101 id. 661 ; Dobbins v. Brown, 119 id. 188 ; Warren v. F. R. Co., 8 Allen, 227 ; Ryan v. M. R. Co., 121 N. Y. 126 ; Foster v. People, 50 id. 598 ; Seymour v. Fellows, 77 id. 178 ; Burdick v. Freeman, 120 id. 424.) The court erred in refusing to charge as requested concerning the effect of the evidence of the experts. (Gardinier v. N. Y. C. & H. R. R. R.Co., 103 N. Y. 674.)</p> <p>The court was right in not dismissing the plaintiff’s complaint. (Webster v. R. R. Co., 115 N. Y. 112 ; Brien v. R. R. Co., 109 id. 297, 300 ; Seyboll v. R. R. Co., 95 id. 562, 568 ; Caldwell v. Steamboat Co., 47 id. 291 ; Edgerton v. R. R. Co., 39 id. 230 ; Christie v. Griggs, 2 Campb. 79 ; Stokes v. Salstonstall, 13 Pet. 181, 191, 194 ; Carpue v. R. R. Co., L. R. [5 Q. B.] 747, 751 ; Lanig v. Barr, 8 Barr, 479, 482, 483.) ¡Not alone did the plaintiff, by direct proof, show that the defendant was negligent, but he showed by defendant’s own rules that it suggested in over twenty-three different ways how a person, using care, forethought and prudence, could have avoided the accident. (Connelly v. M. R. Co., 60 Hun, 495 ; Dlabola v. M. R. Co., 15 Daly, 470.) In the court below the defendant made no point nor did it claim that they had any ground of complaint of the rulings of the learned trial court in the admission or exclusion of evidence. Yot having done so, it waived its right to any exception that it took in that behalf. (Parker v. Steamboat Co., 109 Mass. 449 ; Connelly v. M. R. Co., 60 Hun, 501, 503 ; Higbee v. L. Ins. Co., 66 Barb. 462, 468 ; 53 N. Y. 603 ; Brown v. N. Y. C. R. R. Co., 32 id. 603 ; 1 Greenl. on Ev. § 102 ; 1 Phil, on Ev. [5th Am. ed.] 147-150 ; Barber v. Merriam, 11 Allen, 322 ; Roosa v. B. L. Co., 132 Mass. 439 ; Matterson v. R. R. Co., 35 N. Y. 491 ; Commonwealth v. Dorsey, 103 Mass. 419, 420.) There was no error committed by the court in its charge or in its refusal to charge, or in the making of any qualifications to any of the requests to charge, that calls for a reversal of this judgment. (Hickenbottom v. R. R. Co., 122 N. Y. 91, 99-102 ; Clover v. G. Ins. Co., 101 id. 277 ; Losee v. Buchanan, 51 id. 491-493 ; Caldwell v. Steamboat Co., 47 id. 282, 288, 289 ; Sperry v. Muller, 16 id. 407, 412 ; Austin v. N. J. S. Co., 43 id. 75.)</p>

This action was brought to recover the amount of an adjusted loss under a policy of insurance issued by defendant. The facts, so far as material, are stated in the opinión. A policy of insurance, like other contracts, is presumed to embrace the entire agreement between the parties. After it has been delivered and accepted, paroi evidence is not admitted to control or vary its terms. (Mayor, etc., v. B. Ins. Co., 3 Abb. Ct. App. Dec. 251 ; Pindar v. R. Ins.

<p>Where hearsay evidence only is given of a fact at issue in an action, it will not be regarded as sufficient proof of the fact unless it appears from the course of the trial that it was so received and accepted.</p> <p>The Supreme Court has no power on appeal to add to a judgment a sum which it finds by the evidence to be due plaintiff, where the question as to what amount is due is one of fact, upon which either party might demand the verdict of a jury.</p> <p>While a consignee, by simply accepting the goods consigned to him, and in the absence of any provision in the bill of lading providing for the payment of demurrage by him, is not liable therefor, where he is owner of the cargo, and the vessel is through his fault detained an unreasonable length of time at the port of discharge, he is liable for damages in the nature of demurrage.</p> <p>In such case, however, not only must an unreasonable detention be proved, but, also, the damages, their nature and amount. Damages will not be presumed simply from proof of unlawful detention, and so, if plaintiff fail to prove any damages he is not entitled to judgment for even nominal damages.</p> <p>M. & Co. chartered plaintiff’s schooner for a voyage from Charleston to Yew York. The charter party contained specific provisions for the payment of freight at a rate specified, and for the payment of a sum specified for each day’s unlawful detention. The cargo was consigned to defendants, who "were the owners thereof. The bill of lading provided for the delivery of the cargo to the consignees, "they paying freight * * as per said charter party and its conditions.” Yothing was contained therein upon the subject of demurrage. In an action to recover freight and demurrage, held, that the reference in the bill of lading to the charter party was confined to the conditions of the latter instrument as to the payment of freight, and so, that the provisions of the charter party as to demurrage were not made part of the bill of lading, and defendants by receiving the cargo did not become liable to pay the rate specified, but the amount of damages sustained by the alleged unlawful detention was to be proved; and that in the absence of proof plaintiff was not entitled to recover nominal damages.</p> <p>Reported below, 67 Hun, 137;</p>

The action is brought by the payee of a promissory note against the indorser. The facts were not in dispute and were stated by the General Term, as follows: Frederick D. Blake and Charles Waterman were partners engaged in thé dry goods business under the firm name of F. D. Blake & Co. They were indebted to various creditors, including the plaintiff, and, becoming insolvent, executed a general assignment of all their property to J ames H. Thorp on the 24th day of April, 1888.

This was an action to recover damages sustained by plaintiff while employed by defendant as a fireman on one of its freight trains in a collision between that and another train. The facts, so far as material, are stated in the opinion.

This action was brought by the plaintiff against certain individuals and corporations with whom it had formed an association, called the American Bridge Manufacturers’ Association, for the purpose of… Held: at the request of the plaintiff, to be against public policy, its purpose having been to prevent competition and to increase prices beyond market rates, equity will not interfere to adjust controversies between the parties.

<p>The law favors equality among children in the distribution of estates, and in case of doubtful construction of the language of a will it selects that which leads to such a result.</p> <p>So, also, the law favors the vesting of estates, and in case a will contains apt words to dispose of the testator’s entire estate that construction will be given to it.</p> <p>The will of S. gave to his wife the use of all his property for life, the remainder to his three children, two sons who were unmarried, and a daughter who was married and had two children. The will then provided that in case of the death of the sons, or either of them, without issue then living, the share of the one so dying should be divided equally between the two grandchildren. In an action for partition of lands of which the testator died seized, and for a construction of the will, held, that the death referred to was that of a son during the lifetime of the testator, and as they both survived him, they, with their sister, took the entire estate, subject to the life estate of the widow.</p>

This action was brought to recover damages from defendant and one David Dessau, who was joined as a party defendant, :but has died since the action was commenced, for alleged false imprisonment. The facts, so far as material, are stated in the opinion. Plaintiff’s arrest was unlawful .and an outrage ; all persons who connived at the arrest are liable in damages.

This appeal is from an affirmance by the General Term of the second department of an order of the Special Term amending, upon the application of the defendant, Mary Estelle Lackey, an interlocutory judgment in the action entered April 8, 1893, by cancelling and striking therefrom a provision directing a sale of the interest of James B. Mingay, a tenant by the curtesy in the premises directed to be sold, and payment by the referee appointed to make the sale out of the…

<p>Where the performance of a contract depends upon the continued existence of a person or thing which is assumed as the basis of the agreement, the death of the person or the destruction of the thing terminates the obligation.</p> <p>So, also, if after a contract is made the law interferes and makes subsequent performance impossible, the party is held to be excused.</p> <p>The parties, who were engaged in and were competitors in the business of water transportation, entered into an agreement to combine their interests. This provided that a corporation should be organized, each to contribute thereto an equal amount of capital in the vessels and properties then employed by them, defendants to have the management of the business and to receive commissions for its performance. In consideration thereof defendants guaranteed to plaintiff a dividend of not less than seven per cent per annum on his shares for seven years. Dividends when earned were to be declared and paid quarterly, and during the seven years neither party was to be interested in any competing steam water line without the consent of the other. The corporation was organized and the business carried on by it for about five years, when, by the judgment in an action brought by the attorney-general in the name of the People, the corporation was dissolved and a receiver appointed. In an action to recover the amount so guaranteed for the two years subsequent to the dissolution, held, that the parties contracted upon the assumption of corporate existence during the period covered by the ’guaranty:, that the dissolution took away for the future the whole consideration upon which the guaranty was based, and so relieved the defendants from liability thereon.</p> <p>It was claimed by plaintiff that the causes of the dissolution of the corporation were the wrongful acts of the defendants, and so. tliey were estopped from interposing it as a defense. The grounds of forfeiture upon which the judgment in the Peoples action was based were technical violations of the statute under winch the corporation was organized, not affecting any public interests, and for some of them plaintiff was as much responsible as defendants, The action was brougnt upon the application of plaintiff, he gave the bond required by the attorney-general as security for costs, and also verified the complaint. Held, that plaintiff owed no public duty to the state to bring to the notice of its officers the technical breaches of corporate duty upon which the judgment of dissolution proceeded: that as between the parties themselves there was no cause for dissolution; and, as plaintiff procured the judgment, that defendants were not precluded from availing themselves of it as a defense.</p>

<p>Appeal from order of the General Term' of the Supreme Court in the first judicial department, made December 6, 1892, which reversed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and ordered a new trial.</p> <p>This action was brought to restrain defendants from using the words “ Bromo-Caffeine,” which plaintiffs claimed as a trade mark.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>There having been no appeal from the order of the Special Term containing the findings of fact and directing judgment, the question as to whether or not the name “ Bromo-Caffeine ” is descriptive of the plaintiffs’ article was not before the General Term. (Reese v. Smith, 95 N. Y. 645.) But by the undisputed evidence it is apparent that the 21ame “ Bro22io-Caffeine ” is 21 ot in fact desc2’iptive, even if that question had been before the General.Term and were now open on this appeal. (Selchow v. Baker, 93 N. Y. 59.) It is no objection to the validity of a ti’ade mai-k that the name has been used for another purpose, as an old name may be applied to a new use, and thus become a valid trade mark. (Newman v. Alvord, 49 Barb. 588; 51 N. Y. 189.) The foregoing rule, namely, that an old word may be applied to a new use and be a valid trade mark, obtains a fortiori whe2i such old wo2-d is unknown and not in common use. (E. S. Co. v. Hazard, 29 Hun, 269; Hier v. Abrahams, 82 N. Y. 519.) It is no objection to the validity of a trade mark that it suggests without describing the thing or ingredients of which ft is made. (Burnett v. Phalon, 9 Bosw. 192; Waterman v. Shipman, 130 N. Y. 310.) The term “ Bromo-Caffeine ” as applied to the plaintiffs’ preparation is not descriptive. (Town v. Stetson, 5 Abb. Pr. [N. S.] 218; 3 Daly, 53; Ayer v. Rushton, Codd. Dig. 229 ; Caswell v. Davis, 58 N. Y. 223; Godillot v. Hazard, 49 How. Pr. 5 ; D. & H. C. Co. v. Clark, 13 Wall. 311; 18 How. Pr. 64.) The term “ Bromo-Caffeine” as used in chemistry, being a foreign word entirely, may be a lawful trade mark, although descriptive of the chemical compound in the foreign country. (Rillet v. Carlier, 61 Barb. 435.) Independently of any question of trade mark, the plaintiffs' are entitled to relief on the ground of unfair competition. (Browne on Trade Marks [2d ed.], § 43 ; Koehler v. Sanders, 122 N. Y. 65 ; Newman v. Alvord, 49 Barb. 588; 51 N. Y. 189.) The defendants cannot defeat the plaintiffs’ right by using their own name instead of the plaintiffs’, on the infringing article. (Hageman v. O'Byrne, 9 Daly, 264.) In the courts below it was claimed by the defendants that the term “ Bromo-Caffeine,” having become the established name of a well-known substance, namely, the medical preparation made by the plaintiffs, it could not be claimed, as a trade mark; this is untenable. (Selchow v. Baker, 93 N. Y. 66; C. Co. v. C. Co., 32 Fed. Rep. 94; C. M. Co. v. Read, 47 id. 712.) The exceptions, to the judge’s refusal to make certain proposed findings of fact are unimportant and in no way affect the proper decision of this appeal. (Code Civ. Pro. § 1338; Davis v. Leopold, 87 N. Y. 620 ; Steubing v. R. R. Co., 138 id. 660; Wiltsie v. Eaddie, 4 Tr. Af. 481; McCulloch v, Dobson, 133 N. Y. 114.)</p> <p>The name “BromoCaffeine” is clearly descriptive, indicating the essential ingredients of the. plaintiffs’ preparation. (Caswell v. Davis, 58 N. Y. 223.) The name “ Bromo-Caffeine,” being the name of a chemical compound, and describing its nature, compo-. sition and ingredients, cannot be the subject of a trade mark. (Caswell v. Davis, 58 N. Y. 223 ; A. M. Co. v. Spear, 2 Sandf. 599 ; Fettridge v. Wells, 4 Abb. Pr. 144; Keasbey v. B. C. Works, 41 N. Y. S. R. 437.) The plaintiffs, having no patent, have no exclusive right to the manufacture in which they deal. (Canhan v. Jones, 2 V. & B. 218; Thompson v. Winchester, 19 Pick. 214; James v. James, L. R. [13 Eq.] 421.) The suggestion made by plaintiffs that “ Bromo-Caffeine ” was a chemical and not a medicine is without force. (Caswell v. Davis, 58 ET. Y. 236.) The mere fact that “BromoCaffeine ” is a combination of the words bromine and caffeine, it is submitted, is fatal to plaintiffs’ claim. (Caswell v. Davis, 58 N. Y. 236.) Persons who sell articles under false names cannot invoke the protection of a court -of equity on an application for an injunction. (Fettridge v. Wells, 4 Abb. Pr. 144; Wolfe v. Burke, 56 N. Y. 115.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There was not any profits realized upon Camp’s contract with Long Island City, and as his ten per cent was payable out of the profits, he was not entitled to any judgment against the defendants. (Dwight v. G. L. Ins.

Monroe, deceased. The nature of the proceeding and the facts, so far as material, are stated in the opinion. Many of the facts and circumstances set forth in the petition are so vague and general that they gave no information to the administrator as to what he was to meet. The facts and circumstances, which' are set forth with some definiteness, the surrogate has made no findings upon whatever.

The nature of the action and the facts, so far as material, are stated in the opinion. Probable cause is defined to be a reasonable ground for a suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that a person accused is guilty of the offense with which he is charged. (Anderson v. How, 116 N. Y. 336 ; Carroll v. Ayres, 53 id. 114; Foshay v. Ferguson, 2 Den. 617; 125 N. Y. 79 ; N. Y. C. Ins. Co. v. N. P. Ins.

This was an action upon a policy of insurance issued by defendant upon the life of John L. Spencer, the husband of the plaintiff; she was named therein as the beneficiary. It appeared that the decedent failed to pay a premium which became due February 9, 1890, in consequence of which default the policy lapsed.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s evidence failed to show that the death of the decedent was caused by the negligence of the highway commissioners; the defendant’s liability was, therefore, not established, and its motion to dismiss the complaint and for a non-suit should have been granted.

The relators applied for a mandamus directed to the board of supervisors of the county of Kings, requiring it to convene and divide said county into assembly districts, claiming that an apportionment heretofore made should be set aside on the ground that the population upon which it was based included aliens. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The Statute of Limitations is a bar to this action. (Code Civ. Pro. § 382; Roberts v. Ely, 113 N. Y. 128; Chapman v. Forbes, 123 id. 532; Mills v. Mills, 115 id. 80 ; Morris v. Budlong, 78 id. 558 ; Root v. French, 13 Wend. 570.) The Statute of Limitations is not a bar to this action. (Code Civ. Pro. §§ 1871, 1872, 1879, 3343; Bayard v. Hoffman, 31 Hun, 256; Eyre v. Beebe, 28 How.

This was an action upon a contract made between plaintiff and the firm of Joubert & White of which firm defendant is the surviving partner. The provisions of the contract and the facts, so far as material, are stated jn the opinion. The construction of the contract claimed by defendant would make it unreasonable.

This action was brought upon a bond. given by Duncan MacIntyre, as special guardian for the plaintiff, then an infant, in proceedings instituted in the Supreme Court for the sale of plaintiff’s real estate, such bond being executed by MacIntyre as principal, and William Long, defendant, and George W. Boot as sureties. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff is entitled to a judgment of reversal and to recover the possession of the property upon a new trial, unless the exception in the deed of Matthew Hopper to John Hopper (the younger) failed to take effect as such. (Munn v. Morrall, 53 N. Y. 44; Benson v. M. Bank, 20 Penn.

This action was brought to recover damages for injuries to a steamship owned by plaintiff, sustained in a collision with a rock under water while approaching defendants’ wharf. The facts, so far as material, are stated in the opinion. The accident did not occur in an approach to the berth. It should have been so ruled by the trial judge. It was error to leave it for the jury to determine.

In February, 1890, the plaintiff recovered a judgment against one Lovell for $147.44.

This was an action for malicious prosecution brought by plaintiff, who had been one of several defendants in an action for trespass, in which the defendants herein were plaintiffs and in which they were defeated. The facts, so far as material, are stated in the opinion.

This action was brought by plaintiffs, who were the owners of certain lots by purchasing from defendant, a club of which they had become members, to remove a cloud from their title caused by the lien of an assessment levied under the by-laws of defendant, and to restrain defendant from forfeiting their rights as members by reason of non-payment of said assessment. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made December 27, 1893, which directed judgment in favor of plaintiff upon a case submitted under the Code of Civil Procedure (§ 1279).</p> <p>Plaintiff, a savings bank incorporated under the laws of this state, had, on May 21, 1893, a deposit account with the Elmira National Bank. On that day said bank having become insolvent, defendant was appointed its receiver by the comptroller of the currency Plaintiff claimed that the amount of its deposit should be paid as a preferred claim under the State Banking Law. (Laws of 1892, chap. 689, § 130.)</p> <p>The provisions of the statutes and further facts, so far as material, are stated in the opinion.</p> <p>Congress is empowered to prevent preferences to creditors of insolvent National banks, -and, having so legislated, the Federal law is supreme. (N. Bank v. Colby, 21 Wall. 613 ; Bank of Bethel v. P. Bank, 14 id. 402; C. C. N. Bank v. United States, 107 U. S. 445; Balch v. Wilson, 25 Minn. 299; Schmidt v. N. Bank of Selma, 22 La. Ann. 314; Turner v. N. Bank of Keokuk, 20 Iowa, 568; V. N. Bank v. Taylor, 56 Penn. St. 14; Raynor v. P. N. Bank, 93 N. Y. 374; Hayes v. Beardsley, 136 id. 304; Bank v. Butler, 129 U. S. 223 ; Robinsons. N. Bank, 81 N. Y. 393; M. N. Bank v. P. N. Bank, 30 Hun, 53; 93 N. Y. 648; Wilson v. B. C. M. Co., 12 Pet. 250 ; New York v. Coombs, Id. 72; United States v. Milne, 11 id. 155; C. N. Bank v. R. N. Bank of Mansfield, 52 How. Pr. 138; Bank of Redemption v. Boston, 125 U. S. 67 ; Rosenblatt v. Johnston, 104 id. 462; W. N. Bank v. Parker, 41 Fed. Rep. 402 ; Wasson v. N. Bank, 5 West [Ind.], 270 ; N. Bank v. Richmond, 42 Fed. Rep. 877; F. N. Bank v. Herbert, 44 id. 158; F. N. Bank v. Landes, 45 id. 619; People v. Smith, 50 Hun, 307.) The state law does not and cannot give to a savings bank an equitable lien on its deposit in a National bank. (Payne v. Wilson, 74 N. Y. 353 ; P. N. Bank v. Mixter, 124 U. S. 721; C. C. N. Bank v. U. S., 107 id. 445; N. Bank v. Commonwealth, 9 Wall. 353; Waite v. Dowley, 94 U. S. 527; W. U. Tel. Co. v. Mass., 125 id. 551; Hughitt v. Hayes, 136 N. Y. 167; Richards v. La Turette, 119 id. 59; Commercial Bank v. Hughes, 17 Wend. 94; Marsh v. O. C. Bank, 34 Barb. 298; A. N. Bank v. F. N. Bank, 46 N. Y. 82; F. N. Bank v. O. N. Bank, 60 id. 288 ; C. Bank v. People, 93 id. 582.)</p> <p>Every claim against the association lately known as the Elmira National Bank, which has been proved to the satisfaction of the comptroller of the currency of the United States, or adjudicated in a court of competent jurisdiction, is entitled to its ratable share of the things which the defendant has got or can get, and which are money or will produce money. (Laws of 1892, chap. 689, § 130.)'</p> <p>National banks are intended to be placed on the same footing as state banks by section 130 of the Banking Law of this state giving to savings banks making authorized deposits in a bank thereafter becoming insolvent, a preference over other depositors in the distribution of the assets of the insolvent bank. (Laws of 1892, chap. 689, §§ 118, 119, 130; 73 Hun, 360.) The National Banking Law is not inconsistent with the provisions of our State Banking Law, giving a preference to savings banks over other depositors in the distribution of the assets of an insolvent National bank. (U. S. R. S. §§ 5236, 5242; Soott v. Armstrong, 146 U. S. 499; Yardley v. Clothier, 51 Fed. Rep. 506; 49 id. 337; S. S. Co. v. Armstrong, 37 id. 18 ; Armstrong v. Warner, 31 N. E. Rep. 877; Hughitt v. Hayes, 136 N. Y. 136 ; C. E. Bank v. Blye, 101 N. Y. 303; F. N. Bank v. Dunbar, 118 Ill. 625; Hade v. McVey, 31 Ohio St. 231, 238 ; C. N. Bank v. Armstrong, 59 Fed. Rep. 372; Gilbert v. Mortimer, 10 B. & C. 44; Clark v. Islin, 21 Wall. 360; N. Bank v. Graham, 100 U. S. 699.) Section 130 of the Banking Law of this state, making deposits by a savings bank a preferred claim against an insolvent National bank, is within the proper sphere of state legislation ; is not inconsistent with the proper construction of the National Banking Act; and to construe the two acts as inconsistent and repugnant would force the National legislation beyond constitutional limr;ations. (N. Bank v. Commonwealth, 9 Wall. 359; W. U. Tel. Co. v. Mass., 125 U. S. 551; Waite v. Dowley, 94 id. 527; Thomas v. F. Bank, 46 Md. 43; F. & M. N. Bank v. Dearing, 91 U. S. 29; Winter v. Baldwin, 89 Ala. 483.) It is conceded by both parties to this controversy, and it is now the settled practice, that such actions as this may be brought in state courts, and that the receiver alone may be a party. (Adams v. Darmis, 29 La. Ann. 315; Case v. Terrell, 11 Wall. 199; Kennedy v. Gibson, 8 id. 498; Case v. Bank, 100 U. S. 446.)</p>

The action was brought to recover damages for the publication in the Morning Journal of an article complained of as libelous and which reads as follows: “ Le Huray Sisters, Blanche, Stella and Allien, just from Paris; massage, French style ; love secrets; how to get a husband ; inclose stamp ; valuable information for ladies by aid of cards.

<p>The State courts have no jurisdiction of an action for an infringement of a patent, and so, unless there is an agreement on the part of the owner for the manufacture and sale of the patented article, an action is not maintainable in said courts to recover therefor.</p> <p>In 1882 B., the owner of a patent, and plaintiff’s assignor, and the firm of S. & S., entered into an agreement by which he gave to the firm a license to manufacture and sell the patented article for one year on payment of specified royalties. By the terms of the agreement the firm had the privilege of renewing the license on giving sixty days’ notice. The agreement was renewed until May 1, 1885, when a new agreement was made renewing it for another year, but any further extension to depend upon the mutual agreement of the parties. Pending negotiations for renewal the firm continued to manufacture the article and paid the agreed royalties up to June 80, 1886. No new agreement was made. B. notified the firm that the license was revoked, and the old agreement was considered by both parties as terminated at that time. The firm, however, thereafter manufactured and sold an article varying in some particulars from the patent, but in substance the same, which it claimed was not an infringement upon the rights secured by the letters patent. In an action to recover royalties for the goods so manufactured, held, that the continued manufacture and the failure of B. to take further action to prevent it after said notice, did not amount to a waiver of the notice or a renewal of the license, and so plaintiff was not entitled to recover the agreed royalties; that the only cause of action was for an infringement, of which the state court had no jurisdiction.</p>

This was an action upon a contract by which plaintiffs agreed to sell and defendants to purchase a certain quantity of slit steel. The complaint claimed damages for a failure by defendants to accept and pay for a portion of the steel, and also asked to recover for the balance remaining unpaid upon that portion of the steel which had been delivered. The facts, so far as material, are stated in the opinion.