Volume 143 — New York Reports

This is an action in the nature of one for an accounting. The plaintiff demands judgment against the defendant that it render an account to the plaintiff of its net income arising from passenger traffic on its railroads since the 5th day of June, 1879, and that it pay to the plaintiff five per cent thereon from October 1, 1879, after crediting defendant with the amounts of the quarterly payments actually made by it since that date.

The nature of the action and the facts, so far as material, are stated in the opinion. The order is appealable to this court. (Mingay v. H. M. Co., 99 N. Y. 270; H. R. T. Co. v. W., etc., Co., 135 id. 393.) The parties had the right by stipulation to modify as desired the force and effect of the order of discontinuance.

<p>The imposition of a fine is a species of punishment, and before any body, tribunal or officer can impose it, authority so to do must be clearly found in some statute.</p> <p>The provision of the New York Consolidation Act (Chap. 410, Laws of 1882) giving to the board of education “ full control of the public schools, .and the public school system of the city, subject only to the general statutes of the state upon education,” does not give to that board power to vimpose a fine upon a teacher, either payable in money or by forfeiture . of salary for a specified period, for violating the orders of the superintendent, or it seems, for any misconduct or dereliction, in the absence of any by-law, rule or regulation known or assented to by the teacher providing for the imposition of such a fine.</p>

<p>The charter of a railroad corporation may not be annulled, or held forfeited in part, because of a violation by it of a private contract.</p> <p>So, also, the fact that such a corporation, propelling its cars by steam, has, by virtue of a private contract, surrendered the right to use steam on a small portion of its route, and that it has violated this contract, is no defense in proceedings instituted by it to condemn lands required and shown to be necessary for its corporate purposes.</p> <p>The company’s corporate rights of eminent domain are unaffected by the breach of contract, 'and may still be exercised in a proper.case.</p> <p>Where, therefore, in such proceedings it appeared that the petitioner, prior to 1859, was lawfully running its trains along an avenue in the city of Brooklyn; that, pursuant to the provision of the act of that year (Chap. 484, Laws of 1859) providing for the relinquishment of its right to use steam power within the city, it entered into a contract with the city, by which it surrendered such right in consideration of a sum paid to it, which was raised by assessment upon property benefited, and thereafter the common council of the city adopted a resolution authorizing the use of steam in running cars on said avenue, and the legislature passed an act (Chap. 187, Laws of 1876) authorizing the petitioner to run cars over its road on the avenue by steam power, whereupon the petitioner resumed the use of steam power on the avenue, held, that the question of the constitutionality of the act last mentioned was not presented ; that if unconstitutional and the use of steam power on the avenue illegal, this was no defense to the proceedings.</p>

This was an action upon two jiolicies of insurance issued hy defendant upon a stock of goods, household goods and furniture belonging to plaintiff. The facts, so far as material, are stated in the opinion. The insertion in the policy of the clause providing for the certificate of the magistrate or notary was made compulsory upon the defendant by chapter 486, Laws of 1886, and, therefore, cannot be considered harsh or unconscionable. (Quinlan v. P. W. Ins.

This was an action for the specific performance of a contract for the purchase of land. The facts, so far as material, are stated in the opinion. The court can acquire jurisdiction over an infant only by a service of summons. Personal service of a summons on a minor under fourteen years of age must be made by delivering a copy to the minor and also to his father. (Code Civ.

The nature of the proceeding and the facts, so far as. material, are stated in the opinion. The hoard of supervisors of Jefferson county had no power to change the school commissioners’ districts of Jefferson county, and the act passed by them at their session in 1892 is absolutely void and of no effect whatever.

The nature of the action and the facts, so far as material, are stated in the opinion. Appeal will lie to this, court. The verdict for. plaintiff settles all controverted questions. (M. N. Bank v. Sirret, 97 N. Y. 320; O'Brien v. Jones, 91 id. 193-196; Wolfahret v. Beekert, 92 id. 490, 497.) The only source in this action from which the interest of the respondents can he determined is the sealed contract which is in evidence.

<p>Defendant. issued an open policy of marine insurance to cover shipments of cotton from ports in the United States to ports in Europe. By the terms of the policy the adventure in each case began immediately upon the loading and continued until the safe landing of the goods at the specified port of destination. The assured was authorized to issue certificates, signed by defendant's manager, certifying that the bales of cotton mentioned therein were covered by the policy.. On the margin of the policy was written a clause stating that it “ covers all risks at and from the port of destination to the final destination of the cotton.” A shipment of cotton was made at Norfolk, Ya., the final destination of which was Liverpool, which was insured under the policy. The cotton arrived safely at Liverpool, but on the night following its discharge, while upon the dock, it was damaged by fire. In an action upon the policy, held, that defendant was not liable ; that the marginal clause was intended to apply in cases where the port of destination of the vessel was not the final destination of the cotton, so as to cover the shipment until it reached such final destination, but when this was reached and the cotton safely landed, the policy expired.</p>

<p>Election—Residence—Prison.</p> <p>A person cannot, under the guise of, or if even without, a commitment, go to the Tombs as a prisoner with a right to he there only as a prisoner, and gain a residence there for voting purposes.</p>

'Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order Which affirmed a judgment of the court of oyer and terminer of the city and county of New York, entered upon a verdict, convicting the defendant of the crime of presenting false proofs of loss in support of a claim upon a policy of insurance, in violation of section 579 of the Penal Code.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made May 8, 1894, which affirmed an order of the surrogate of New York county directing interest at the rate of six per cent per annum to be charged upon a portion of the collateral inheritance tax fixed upon the estate of Daniel B. Fayerweather, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The penalty of ten per cent for non-payment of tax within eighteen months after its accrual having been remitted, interest at the rate of six per cent per annum from the date of such accrual was properly chargeable. (Laws of 1892, chap. 399, §§ 4, 26; Laws of 1887, chap. 713, § 4; In re Vassar, 127 N. Y. 8; People v. Roper, 35 id. 638 ; O. Bank v. Freeze, 18 Maine, 109; Butler v. Pennsylvania, 15 How. [U. S.] 418; Butler v. Palmer, 1 Hill, 324; Hartung v. People, 22 N. Y. 102; Ex parte McCardle, 7 Wall. 506 ; State v. Slevin, 16 Mo. App. 541.)</p> <p>The courts will not give a retroactive effect to any statute unless it is clearly and unmistakably the intention of the legislature that it shall have such effect. (Conley v. Palmer, 2 N. Y. 182; Sandford v. Bennett, 24 id. 20 ; Stone v. Flower, 47 id. 566; Parmenter v. State, 135 id. 143; Dwarris on Stat. 680 ; Sedgwick on Stat. Law, 180; Smith’s Com. 291; Brown’s Leg. Max. 14; Moore v. Durden, 2 Exch. 21; Dash v. Van, Kleeck, 7 Johns. 447; Butler v. Palmer, 1 Hill, 324; Wood v. Oakley, 11 Paige, 400; Bull v. Ketcham, 2 Den. 188; People v. Supervisors, 10 Wend. 383; Van Rensselaer v. Livingston, 12 id. 490.) All tax laws must be construed strictly and they cannot be enlarged by implication beyond the exact letter of the statnte, and. they will never be given a retroactive effect. (U. S. v. Wiggleworth, 2 Story, 269 ; U. S. v. Watts, 1 Bond, 580; Partington v. Atty.-Gen., L. R. [4 H. L.] 100 ; Warrington v. Furbor, 9 East, 242; Greene v. Holway, 101 Mass. 243 Riggs v. Palmer, 115 N. Y. 506.) This act is not retroactive,' and section 24 of the statute of 1892 clearly repeals, any retroactive construction of said act. (Sherrill v. Christ Church, 121 N. Y. 701; In re Miller, 110 id. 216 ; People v. O’Brien, 111 id. 1; Quinlan v. Welch, 141 id. 158.)</p>

S. Roosevelt, deceased, and fixing the collateral inheritance tax thereon. The facts, so far as material, are stated in the opinion. The remainders devised to the nephews and nieces are vested remainders, and are now subject to the payment of the tax. (4 R. S. 2431, 2434, 2516; Cook v. Cook, 95 N. Y. 103; Beardsley v. Hotchkiss, 96 id. 201; 4 Kent’s Comm. 202; 18 Abb. N. C. 297, 303; Weed v. Aldrich, 2 Hun, 531; Williamson v. Field, 2 Sandf.

<p>W. by Ms will gave Ms real estate to Ms wife for life if she remained unmarried, if not, until her marriage, and upon her death or marriage he gave the said real estate to his and his wife’s heirs, “ their heirs and assigns forever, share and share alike.” In an action for partition, brought after the death of the widow, held, that all of the persons who at the time of the widow’s death answered the description of heirs at law, either of the testator or of his widow, took an undivided interest in the lands as members of the same class per capita and not per stirpes.</p> <p>Reported below, 66 Hun, 604.</p>

This was an action of ejectment. Thé facts, so far as material, are stated in the opinion. The maintenance and operation of the telephone line over the highway is a legitimate and proper use thereof so far as the public is concerned. The authority so to use it was conferred by legislative act. (Laws of 1848, chap. 265 ; 3 R. S. 2061; Laws of 1853, chap. 47; 3 R. S. 2063; Atty.-Gen. v. T. Co., L. R. [6 Q. B. Div.] 244; C. T. Co. v. U. E. R. Co., 42 Fed.

This action was brought upon the following order: “ Mr. George H. Cook, “No. 50 Broadway, N. Y. City: “ Retain and pay to Charles Beardsley of Poughkeepsie, N. Y., from the last payment to be made by you to us on account, of our contract for building houses in Dean street, Brooklyn, the sum of eleven hundred and seventy-five ($1,175) dollars,, according to the terms of our contract with Mr. Beardsley. “DAVIS & FAT. “Dated New York, December 11, 1890.” The facts, so far as…

The nature of the action, and the facts, so far as material, are stated in the opinion. An equitable conversion is not an actual conversion. Until the latter had taken place the title was in Mrs. Brisbin and her children until 1876, when they conveyed to their father Giles, and it was subject thereafter to the lien of the judgments against him, and, hence, liable to be sold on execution as real estate.

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of 27ew York, entered upon an order made April 10, 1898, which affirmed an order of the General Term of the City Court of 27ew York, which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p> <p>This was an action upon a lease under seal to recover rent of rooms. After the commencement of the term a fire occurred which did not totally destroy the building, but so damaged it as to render it wholly untenantable during the period of repairs, and the tenant surrendered the premises.</p> <p>The lease contained the following provision: “ It is further agreed by and between the parties hereto that, if without fault, neglect or improper conduct of the party of the second part, his agents, servants or tenants, the premises hereby leased, or the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs, but, if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.”</p> <p>Plaintiff sought to recover rent claimed to have accrued after the repairs were completed. The parties stipulated that the fire was not caused by the fault of either.</p> <p>In order to exclude the application.of the statute of 1860, it is not necessary that there should be an agreement or covenant in express words that the tenant is to continue to' pay rent, or that the lease shall corn tinue, notwithstanding the destruction of the demised premises, or such injury as renders them untenantable. The statute only requires that there shall be an express agreement, as contradistinguished from one only implied, and that it shall be in writing, and shall be clearly shown on the face of the lease or other written agreement. (Butler v. Kidder, 87 N. Y. 98.) This court will be largely governed by the construction which the parties by their conduct have put upon the agreement. (Chicago v. Sheldon, 9 Wall. 50, 54; Topliff v. Topliff, 122 U. S. 121, 131; French v. Pearce, 8 Conn. 439; Farrar v. Rowley, 2 La. Ann. 475 ; D’Aquvn v. Barbour, 4 id. 441; Onthank v. L. S., etc., R. R. Co., 71 N. Y. 194,197; Jennison v. Walker, 11 Gray, 423 ; Bishop on Cont. § 598.)</p> <p>The appeal should be dismissed, as no appeal lies to this court from an order of the court below affirming a judgment. (Code Civ. Pro. § 3194; A. B. & C. Co. v. Comer, 98 N. Y. 574; Bieling v. City of Brooklyn, 12 id. 99; Hollister Bank v. Vail, 15 id. 593 ; Phipps v. Van Cott, 4 Abb. Pr. 90; Lee v. Ainslee, Id. 463; Ford v. Daniel, 3 id. 385; Bentley v. Jones, 4 How. Pr. 355; Jones v. Miller, 19 Barb. 196; Laurence v. F. L. & T. Co., 15 How. Pr. 57; Code Civ. Pro. §§ 1345, 1355, 3061, 3194.) The lessee of rooms, lofts or apartments in a building rendered untenantable, but not destroyed by fire, is within the protection of the statute of 1860. (Graves v. Berdan, 29 Barb. 100; 26 N. Y. 498 ; S. Bank v. Boston, 118 Mass. 125 ; Winton v. Cornish, 5 Ohio, 477; 1 Washb. Real. Prop. [5th ed.] 577, 578; Tallman v. Murphy, 120 N. Y. 345; Butler v. Kidder, 87 id. 98; Vann v. Rouse, 94 id. 401, 404.) The lease does not waive the protection of the statute. (Butler v. Kidder, 87 N. Y. 103.) A provision for the apportionment of rent in the event of a partial occupancy cannot be construed as a waiver of the benefits of the act of 1860. ( Vann v. Rouse, 94 N. Y. 401.) The tenant is entitied to a reasonable time after the premises have become untenantable within which to remove his property, and what is a reasonable time is a question that should be submitted to the jury. (Zimmer v. Black, 14 N. Y. Supp. 107; Bassett v. Dean, 34 Hun, 250 ; Wallace v. Coe, 13 N. Y. S. R. 546; Fleishman v. Toplitz, 31 N. E. Rep. 1089.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The facts stated in the offers of proof must be deemed to be true. (McNally v. P. Ins. Co., 137 N. Y. 389; Rehberg v. Mayor, etc., 91 id. 137.) The defendant is liable for his false return.

This was an action upon a policy of fire insurance issued by defendant. The complaint set up the issuing of the policy on February 1, 1891, insuring the property from that time for one year; that the property insured was damaged by fire to the full amount of insurance on February 6, 1891; that due proofs of loss were furnished and judgment for the amount of the policy was demanded and refused.

<p>Under the provisions of the Code of Civil Procedure, providing for the service of a summons by publication upon a defendant out of the state (§§ 438, 439), which require that the order directing such a service shall be founded upon a verified complaint showing a sufficient cause of action against a defendant to be served, it is not sufficient that the complaint sets forth facts sufficient to constitute a cause of action; the cause of action must be one of which the court can take cognizance.</p> <p>An action to remove testamentary trustees, holding title to real estate under the trust, is a purely personal action, having no connection with the title, within the meaning of the provision of said Code (Subd. 1, § 263), giving to superior city courts jurisdiction in an action to procure a judgment affecting an estate or interest in real property or a chattel real. 'The provision of said Code (Subd. 1, § 263), giving to said courts jurisdiction of an action “brought by a resident of the city wherein the court is located against a natural person who is not a resident of the state,” includes cases where a sole plaintiff or all of the plaintiffs are residents of the city; it does not give jurisdiction where one of two or more plaintiffs, who is not merely a formal, but an interested party is a non-resident. An action was brought in the Court of Common Pleas in and for the city and county of New York to remove two trustees of a trust created under a will, one of whom is and was at the commencement of the action and during the time mentioned in the complaint a resident of Massachusetts, and none of the acts complained of were done in this state. One of the plaintiffs, also a trustee, resides in the city of New York; the other plaintiff, a cestui que trust, resides in England. • An order was made for the service of the summons on said non-resident trustee by publication. On motion to vacate the order, held, that said court had no jurisdiction, and so, that the order ought to have been vacated.</p>

The first above-entitled action was one of ejectment. The second action was brought to restrain the defendant from entering upon the land described in the complaint and committing irreparable injury. Both actions related to the same premises. The facts, so far as material, are stated in the opinion. in first above-entitled case. The complaint alleges that the plaintiff is the owner in fee of the land in controversy and entitled to the possession.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 12, 1894, which affirmed an interlocutory judgment in favor of plaintiff entered upon a decision of the court on. trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Seizin in the husband is the first essential of the right of dower. (Statute of Uses & Trusts, § 51.) The agreement and arrangement under which Lewis is alleged to have taken title did not vest any legal estate in the defendant Phelps. (N. Y. D. D. Co. v. Stilmam,, 30 N. Y. 174.) The complaint stigmatizes the transactions as fraudulent. This is mere gjetitio principii and cannot aid the discussion. (Holmes v. Holmes, 3 Paige, 363.)</p> <p>The novelty of the present action, if indeed it be without precedent, is no bar to its maintenance. (Youngs v. Carter, 12 Hun, 194.) An action may be maintained in' the lifetime of a husband to preserve and protect the wife’s inchoate right of dower in his lands, and such right is a valuable and subsisting interest which will be protected by the courts. (Simar v. Canaday, 53 N. Y. 298; Kursheedt v. U. D. S. Inst., 118 id. 364; M. L. Ins. Co. v. Shipmam, 119 id. 330; Youngs v. Carter, 10 Hun, 194; 50 How. Pr. 410.) The fact that the paper title is not alleged to have been in the defendant Phelps is not a bar to the maintenance of this action. (Hawley v. James, 5 Paige, 318 ; Giles v. Hutchinson, 120 Mass. 27; Crecelius v. Horst, 11 Mo. App, 304; Rabbitt v. Gaither, 67 Md. 94; Babcock v. Babcock, 53 How. Pr. 97; Youngs v. Carter, 10 Hun, 194; Johnston v. Spicer, 107 N. Y. 185.)</p>

This action was commenced in 1882 for an accounting and distribution of the proceeds of property in which plaintiff and others had an equitable interest, alleged to have been fraudulently misappropriated by the defendants Kelly and Donohoe.

This was an action for partition. Augustus Palmer died intestate in Livingston county in April, 1891, leaving four children, his only heirs at law, the plaintiff and the defendants, Mary L. Culbertson, Cynthia O. Jackson and Addie Palmer. At the time of his death he owned a farm of about 162 acres. In May, 1861, he conveyed to the wife of the plaintiff 59 acres of land, which, with the 162 lying in one body, then constituted his farm.

The relator was convicted of a criminal contempt in refusing to answer questions while testifying before the grand jury, and was committed for such contempt. The facts, so far as material, are stated in the opinion. The writ of certiorari to review, applied for and issued under sections 2120, et seq., of the Code of Civil Procedure, was the proper remedy, and by it the proceedings were properly before the General Term, and 'by the appeal are properly before this court.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 27,1898, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This was an action upon a contract.</p> <p>The facts, so far as material, are stated in the opinion.</p>

This was an action for divorce on the ground of adultery. The facts, so far as material, are stated in the opinion. The motion to non-suit should have been granted. (Code Civ. Pro. § 1758.) Divorces are not granted on the evidence of prostitutes and private detectives, unless corroborated. (Moller v. Moller, 115 N. Y. 466.) If both are guilty neither can have a divorce. (Code Civ. Pro. § 1758.) The allowance of alimony relates to the future, not to the past. (Code Civ.

<p>Appeal from judgment of the General Term of the Supreme 'Court in the first judicial department, entered upon an order made at the April term, 1893, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>This was an action to compel the specific performance by defendant of an agreement to sell certain real estate.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The plaintiff has fully performed his contract and is entitled to specific performance. (Greenl. on Ev. § 113.) It is the general rule that wherq the vendee in such a contract has performed his part of it up to a given point, he cannot be put in default for non-performance further without a tender to him of a proper deed according to the terms of the contract, and a demand for what more is to be done by him. (Lawrence v. Miller, 86 N. Y. 137; Leaird v. Smith, 44 id. 618; Carman v. Pultz, 21 id. 547.) As the contract called for'a deed containing full covenants with warranty, plaintiff had every right to get a deed that would give him a title which shall put him in all reasonable security, and which shall protect him from anxiety and from the annoyance of suits, and from possibly having the land taken from him or his representatives. (Bigler v. Morgan, 77 N. Y. 313; 3 Pars, on Cont. 378; Vought v. Williams, 120 N. Y. 257; Moore v. Williams, 115 id. 586; Ferry v. Sampson, 112 id. 415; Fleming v. Burnham, 100 id. 1; Hellreigel v. Manning, 97 id. 56; Clarke v. Crandall, 27 Barb. 73; North v. Pepper, 21 Wend. 636; Cornwell v. Haight, 21 N. Y. 462; Skinner v. Tinker, 34 Barb. 333.) The defendant being now in a position to fullfill her contract should be compelled to do so. (Leaird v. Smith, 44 N. Y. 619 ; Worrall v. Munn, 38 id. 137; Cleveland v. Burrill, 25 Barb. 532; Bostwick v. Beach, 103 N. Y. 414; Taylor v. Taylor, 43 id. 578, 584; Mason v. Chambers, 3 Monroe, 323; Sibert v. Kelley, 6 id. 674; Pumpelly v. Phelps, 40 N. Y. 66; 3 Washb. on Real Prop. 471-474.) The refusal of the defendant to convey is now based upon mere pretext. (Pumpelly v. Phelps, 40 N. Y. 66 ; Willard v. Taylor, 8 Wall. 565; Losee v. Morey, 57 Barb. 561, 564-566 ; 2 Story’s Eq. Juris. 746, 748, 751; 3 Pom. Eq. Juris, § 1402; Fry on Spec. Perf. §§ 23, 25 ; Rowen v. Presbyteriam Congregation, 6 Bosw. 245, 268; Seymour v. Delancey, 3 Cow. 445, 521; Viele v. T. & B. R. R. Co., 20 N. Y. 184; Stone v. Lord, 80 id. 60; Crary v. Smith, 2 id. 60 ; Brown v. Haff, 5 Paige, 235 ; Baumann v. Pinckney, 118 N. Y. 604.) The deed tendered by the defendant does not affect the plaintiff’s right to a new deed in any view of what occurred between the parties on the occasion of such tender. (Fonda v. Sage, 48 N. Y. 181-183.)</p> <p>Where the situation of the parties has changed, and one of them can be put in his original situation without fulfillment of the contract, while performance of the contract would be a hardship to the other, the court will not decree specific performance. (Sternberger v. McGovern, 56 N. Y. 12; Haffey v. Lynch, 68 Hun, 507; Clarke v. R. L. & N. F. R. R. Co., 18 Barb. 350; Trustees, etc., v. Thatcher, 87 N. Y. 311-317; Murdtfelt v. N. Y., W. S. & B. R. R. Co., 102 id. 703; Day v. Hunt, 112 id. 191. 195 ; M. E. Co. v. Ward, 24 Abb. [N. C.] 393 ; M. E. Co. v. Ewing, Id. 419.) The defendant, if liable at all, is liable for damages only. (Cockcroft v. N. Y. & H. R. R. Co., 69 N. Y. 201; Walton v. Meeks, 120 id. 79, 82; Whitman v. Bruce, 118 id. 321, 419 ; Northbridge v. Moore, id. 419, 422.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made February 8,1894, which refused to confirm the report of commissioners appointed in the matter above entitled, and dismissed the proceeding.</p> <p>The nature of the proceeding and the facts, so far as material, are stated in the opinion.</p> <p>The order of the General Term is re viewable in this court. (Code Civ. Pro. §§ 1337, 3343 ; Laws of 1891, chap. 4, § 4; In re A. A. E. R. R. Co., 136 N. Y. 292; Bossout v. R., W. & O. R. R. Co., 131 id. 37; Bryce v. L. Ins. Co., 55 id. 240; Kennedy v. Porter, 109 id. 526.)</p> <p>The order is not appealable under the Constitution of this state. (Laws of 1892, chap. 102.) Unless there have been errors of law or practice committed in the conduct of the proceeding, or some substantial right denied, the order is not appealable under the Code. (Code Civ. Pro. §§ 190, 1324, 1337; In re T. F. S. R. Co., 102 N. Y. 343; In re R. E. R. R. Co., 123 id. 358; In re P. R. R. Co., 112 id. 578; In re K. C. E. R. Co., 82 id. 95 ; In re Union E. R. R. Co., 112 id. 61; In re N. C. Co., 36 Hun, 272; In re N. Y. C. R. R. Co., 70 N. Y. 357.)</p> <p>The General Term of the Supreme Court had power to review the report of the commissioners in every particular and in its discretion to reverse the determination of the commissioners and refuse confirmation of their report. (In re K. C. E. R. R. Co., 82 N. Y. 95 ; In re U. R. R. Co., 112 id. 61.) The jurisdiction of the General Term of the Supreme Court in these cases is exclusive, and its determination in the case at bar is final and conclusive on all questions affecting the merits and cannot be reviewed on this appeal. (N. Y. C. Co. v. Mayor, etc., 104 N. Y. 1; In re N. Y. E R. R. Co., 70 id. 327, 359 ; In re L. S. & M. S. R. R. Co., 89 id. 442; In re N. Y., L. E. & W. R. R. Co., 99 id. 358.) By the express terms of the statute governing the case the petitioner is required to obtain the authorization of the Supreme Court. (Laws of 1892, chap. 102.) The General Term having rejected and refused, to confirm the commissioners’ report on the merits of the; petitioner’s application, the rights of the petitioner have been exhausted so far at least as this proceeding is concerned. (In re N. Y. E R. R. Co., 70 N. Y. 359; In re K. C. E. R. R. Co., 82 id. 9.)</p> <p>This appeal should be summarily dismissed, as it is not an appeal from an order entitled to be heard as a motion. (Code Civ. Pro. § 190, subds. 2, 4, § 192.) This appeal should he dismissed without an examination by this court of all the intricate sets and correlations of facts which appear in the proceedings, because it was intrusted to the particular and local knowledge and to the discretion of the justices of the General Term, held in the city of New York, to make the order from which the petitioner has now appealed. (In re E. R. B., etc., Co., 26 Hun, 490; 92 N. Y. 644;, Walsh v. Schulz, 6 Civ. Pro. Rep. 126 ; Bossout v. R., W. & O. R. R. Co., 131 N. Y. 37, 41; In re M. E. R. R. Co., 128 id. 600; In re P. P. & C. I. R. R. Co., 85 id. 489.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made May 8, 1894, which affirmed an order of Special Term denying a motion to vacate an award made by commissioners.</p> <p>This proceeding was instituted by the Southern Boulevard Railroad Company under the General Railroad Act of 1850 (Chap. 140), as amended, to acquire the right to construct, maintain and operate a double-track street surface railroad upon land which formerly belonged to Paul Spofford, deceased. The facts, so far as material, are stated in the opinion.</p> <p>Appellant’s practice in this proceeding has been expressly authorized by this court. (141 N. Y. 532; Laws of 1887, chap. 723.) The commissioners proceeded upon a fundamentally erroneous view of the law in basing their award on a repealed statute. (Laws of 1867, chap. 290; Laws of 1887, chap. 23. 723; Laws of 1884, chap. 252.) The partial repeal by amendment of section 24 of the act of 1867 by chapter 723 of the act of 1887 is a constitutional and valid exercise of legislative power. (People ex rel. v. Newton, 112 N.Y. 396 ; Louisiana v. Mayor, etc., 109 U. S. 285; Chase v. Curtis, 113 id. 452; Sedg. on Stat. Const. [2d ed.] 594; Dartmouth College v. Woodward, 4 Wheat. 517; Fletcher v. Peck, 6 Cranch, 87; F. Bank v. Hale, 59 N. Y.,53, 59; Voorhees v. U. S. Bank, 10 Pet. 449, 471; Freeland v. Williams, 131 U. S. 405 ; Scofield v. R. Co., 43 Ohio St. 571.) The contract which the General Term evolved from the act of 1867 is one which the legislature had no power to make. (N. Y. Const, art. 1, § 7.) The legislature has no power to abridge or impair its right of eminent domain. (Cooley’s Const. Lim. 356, 357, 386; Kohl v. United States, 91 U. S. 367, 371; Searl v. School District, 133 id. 553 ; People v. Kerr, 27 N. Y. 211; Cooley’s Const. Lim. [6th ed.] 337.) If it be held that the provisions of the statute of 1867 are, in any sense, a contract which the legislature had power to make, the contract is limited and conditional, dependent upon a contingency which has never arisen, and which, by reason of the amendment to the Constitution in 1875, can never arise. (Tucker v. Ferguson, 22 Wall. 527 H. B. M. & F. R. R. Co. v. S. B. R. R. Co., 41 Hun, 553.) The order and the award sought thereby to be enforced are absolutely void to the extent of six-sevenths of their amounts. (In re Comrs., etc., 96 N. Y. 351; In re N. Y. & H. R. R. Co. v. Kip, 46 id. 546; Strong v. City of Brooklyn, 68 id. 1; Embury v. Connor, 3 id. 511.) The improper rejection of evidence at the hearings vitiates the award and orders appealed from. (Newman v. M. E. R. Co., 118 N. Y. 618; Somers v. M. E. R. Co., 129 id. 576 ; Odell v. N. Y. E. R. Co., 130 id. 690; In re Mayor, etc., 99 id. 569; In re N. Y, W. S. & B. R. R. Co., 37 Hun, 317.)</p> <p>If the commissioners had erred in the respects claimed their errors would not be of a character to warrant the setting aside of their report. (In re N. Y. E. R. R. Co., 41 Hun, 502; In re N. Y. C. & H. R. R. R. Co., 64 N. Y. 63; 49 id. 153; In re P. P. & C. I. R. R. Co., 85 id. 489.) In fact the commissioners committed no errors to the prejudice of appellant. (Stevens v. Marshall, 3 Chand. 229; Story v. E. R. R. Co., 90 N. Y. 160; Lahr v. M. E. R. R. Co., 104 id. 289; People v. Suprs., 4 Barb. 64, 80; In re R. & C. R. R. Co., 67 N. Y. 242; In re Washington Park, 56 id. 144; People em rel. v. Common Council, 78 id. 56; Garrison v. City of New York, 21 Wall. 196 ; In re Amsterdam, 96 N. Y. 351; Henderson v. N. Y. C. & H. R. R. R. Co., 78 id. 423 ; Page v. C. R. R. Co., 70 Ill. 324.)</p>

<p>Appeal from order of the General Term of the Supreme Court in tlie fourth judicial department, made May 18, 1894, which modified and affirmed as modified an order of Special Term which modified an order of said court appointing a receiver of the Binghamton General Electric Company.</p> <p>The nature of the proceeding, the facts and provisions of the order appealed from, so far as material, are stated in the opinion.</p> <p>A proceeding for a voluntary dissolution of a corporation is a purely statutory one, in which the court has no power or authority to act excejjt as such power is conferred by statute. (In re B. S. & F. Co., 34 Hun, 369; Magee v. G. Academy, 17 N. Y. S. R. 221; 1 N. Y. Supp. 709; Matter of the Mart, 22 Abb. [N. C.] 227; Chamberlain v. R. S. P. V. Co., 7 Hun, 557; U. S. T. Co. v. N. Y., W. S. & B. R. Co., 101 N. Y. 478; Decker v. Gardner, 124 id. 334; Code Civ. Pro. § 2419 ; Ruggles v. Chapman, 59 N. Y. 163; R. L. & M. Works v. Kelly, 88 id. 234; In re H. P. S. F. Assn., 129 id. 288 ; People v. Remington, 121 id. 328.)</p> <p>The court had the power to grant the order of March first. (In re S. S. T. B. Co., 136 N. Y. 169 ; Wilkinson v. N. R. C. Co., 66 How. Pr. 423; P. F. M. Co. v. N. R. C. Co., 33 Hun, 156 ; Atty.-Gen. v. G. M. L. Ins. Co., 77 N. Y. 272; Woerishofer v. N. R. C. Co., 99 id. 398, 402, 403; 2 Story’s Eq. Juris. § 891; In re H. P. S. F. Assn., 129 N. Y. 288-295 ; In re G. M. L. Ins. Co., 13 Hun, 115; 74 N. Y. 617; Walling v. Miller, 108 id. 173.)</p>

This action was brought to restrain defendant from prosecuting certain actions. The plaintiff was under written contract, dated April 10,. 1882, to pay the defendant royalties for the use of certain patented inventions at the rate of $500 monthly and to aggregate not less than $12,000 per annum. It paid the royal-, ties for several years, and then, claiming to have discovered that it was induced to enter into the contract by fraud, it refused to make further payments.

This action was brought hy plaintiffs against defendants, the Quebec Steamship Company and its agents, to compel . them to grant to plaintiffs terms, facilities and accommodation for transportation of freight hy said company’s line equal to those granted other shippers. The facts, so far as material, are stated in the opinion. The defendants as common carriers are bound to treat the plaintiffs and all other shippers upon substantially similar terms for similar service.

<p>In an action at law to recover damages for breach of a covenant it is no answer that plaintiff had a remedy in equity to prevent the violation of the covenant and did not avail himself of it.</p> <p>In an action for a breach of contract the damages recoverable are those which the parties may fairly be supposed when they made the contract to have contemplated as naturally following its violation.</p> <p>The inquiry is, what is an adequate indemnity to the party injured, and while damages which are “uncertain, speculative and contingent” are not recoverable, plaintiff is not bound to show to a certainty which excludes the possibility of a doubt, that the loss claimed resulted from defendant’s violation of the contract. Reasonable certainty, founded upon inferences legitimately and properly deducible from the evidence that the loss resulted from the breach and was the natural and proximate result thereof, is all that is required.</p> <p>A lease to defendant of a building in the city of New York for a term which expired May 1,1889, contained covenants on the part of the lessee against subletting or assigning; also, that at reasonable hours in the daytime he would permit the lessor or his agent to show' the premises to such persons as they desired for the purpose of selling or leasing, and that he would permit the usual notice of “ To let” to be posted on the premises, and to remain there without molestation. In an action to recover damages for breach of this covenant these facts appeared: Defendant sublet the premises to another for a portion of the term, who took possession; he refused to permit the posting of any notice, and refused entrance to any one desirous of looking at the house for the purpose of leasing or purchasing; after expiration of the lease the house remained unoccupied and without being leased or sold until February 1, 1890, when it was leased for §900 a year. Evidence tras given that in May, 1889, the rental value was $1,000; also tending to prove that directly in. consequence of the violation of the covenants plaintiff suffered some loss of rent. The trial court held that the failure to rent could not, upon the evidence, he regarded as the natural or necessary consequence of the breach, and directed a judgment for nominal damages only. Held, error; that the covenants as to posting the notice and showing the premises, were included in the lease to aid the lessor in re-leasing at the expiration of the term with the least possible delay, and in inserting them the parties contemplated an amount of rent which might be lost by an inexcusable refusal to perform them, as a proper measure of damages; and that the evidence was sufficient to require the submission of the question to the jury as to whether there was a loss of rent, because of the violation of the covenants.</p>

Cross-appeals from a 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 defendants entered upon a decision of the court on trial at Special Term. This action was brought to compel defendants to issue to plaintiff a certificate of interest in the United States Hotel property at Saratoga Springs. The facts, so far as material, are stated in the opinion.

This action was brought by the plaintiff to recover damages of the defendants, for the injury occasioned to him by the falling of a brick wall, which was being erected, or carried up, upon a party wall between their premises.

This was an action upon a policy issued by defendant December 17,1887, which insured the building, elevator, etc., of the Syracuse Screw Company against loss and damage by fire for one year.

<p>By the will of H. she gave a fund of $50,000 to trustees in trust to hold the same for the lives of the mother of the testatrix and of her daughter, the income to he paid to the mother for life and if the daughter survived, to her for life, the principal at the expiration of the trust to he paid to the issue of the daughter, if any living at her death, if none then to' two nieces of the testatrix. The testatrix died leaving her mother, daughter and a child of the latter surviving. In proceedings before the surrogate to fix the amount of tax, under the Transfer Tax Act of 1892 (Chap. 399, Laws of 1892), it was decided that the value of the mother’s life estate was loss than §10,000. Held, that under the provision of said act (§ 22) declaring that the words ‘ ‘ estate ” and ‘ ‘ property, ” as used therein, shall “ mean the property or interest therein of the testator ” passing or transferred, not that “passing or transferred to individual legatees,” etc., and that the word “transfer” shall “include the passing of property or interest therein in possession or enjoyment,” the life estate of the mother did not come within the limitation in said act (§ 2) declaring that “such transfer of property shall not be taxable under this act unless it is personal property of the value of ten thousand dollars or more;” that the limitation applied to the aggregate value of all the property so transferred, not to the separate value of each several transfer; and so, that the mother’s interest was taxable; hut that the estates of the daughter and grandchild were not presently taxable, and could only be taxed when their rights became fixed and actual.</p> <p>It seems, that said definitions do not affect the general nature of the tax imposed by the act as heretofore determined' by this court; i. e., that the tax is imposed upon the right of succession to property or estates which vest in the successors severally, and not upon the property or estate of the decedent; hut they apply simply to provisions of the act, like the one fixing the limitation, where the word “property” is used by itself and to some extent ambiguously, and, therefore, needs the help of a definition.</p>

The facts, so far as material, are stated in the opinion. The denial by the comptroller of relator’s application to redeem was erroneous, and should be reversed. The application should have been granted. (2 R. S. [8th ed.] 1137, 1141; Laws of 1891, chap. 21; Bush v. Davidson, 16 Wend. 550-553 ; Leland v. Bennett, 5 Hill, 286 ; Bank of Utica v. Merserau, 3 Barb.

The facts, so far as material, are stated in the opinion. Costs in equity actions are not a matter of right, but are governed by section 3230 of the Code of Civil Procedure. (Phelps v. Wood, 46 How. Pr. 1; Block v. O’Brien, 23 Hun, 82; Sisters of Charity v. Kelly, 68 N. Y. 628 ; In re Water Comr., etc., 104 id. 677; Thomas v. White, 50 Hun, 441.) The Special Term should not have granted costs against the appellants.

The nature of the action and the facts, so far as material, are stated in the opinion. The order made at General Term was on the sole ground that it was in the nature of a contempt to replevy from and 'bring an action against the clerk of the court without leave. No other claim of irregularity in plaintiff’s practice is made. The court erred in applying the rule in question to replevin. Replevin should not he enjoined for any such reason.

The nature of the action and the facts, so far as material, are stated in the opinion. An order of the General Term dismissing a motion for want of jurisdiction involves a substantial right, and is, therefore, appealable to the Court of Appeals.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made February 13, 1894, which affirmed an order of Special Term vacating a warrant of attachment.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The order of affirmance of the General Term is appealable. (Birge v. B. B. Co., 133 N. Y. 477; Anderson v. Anderson, 112 id. 104; Harbler v. Bernharth, 115 id. 459 ; Dintruff v. Tuthill, 62 Hun, 594 ; Johnson v. Buckel, 65 id. 602; Hale v. Prote, 75 id. 13.). The learned General Terms in their construction of section 641 of the Code of Civil Procedure give too much prominence to that section, which is mainly, if not wholly, directory, and fail to construe it as they should do, with section 636, which clearly shows the affidavit is the whole foundation of the attachment, and if that shows facts bringing it within section 636 the warrant issues as a matter of course. (Thompson v. Dater, 57 Hun, 319 ; Ross v. Wigg, 34 id. 196 ; N. P. Bank v. Whitmore, 104 N. Y. 305; Brinkley v. Brinkley,. 56 id. 193; D. C. M. Ins. Co. v. Van Wagner, 132 id. 401 Code Civ. Pro. § 649 ; Folmsbee v. City of Amsterdam, 142 N. Y. 122.) The warrant of attachment briefly and truly recited the grounds of the attachment as set up in the affidavit. Under the 2d subdivision of section 636 of the Code, what the affidavit must show is, the intent on the part of the defendant to defraud her creditors. (Thompson v. Dater, 57 Hun, 319 ; Van Alstyne v. Ervine, 111 N. Y. 331; Garson v. Brumberg, 75 Hun, 336.) We think the true meaning of section 641 of the Code of Civil Procedure is that the warrant must show whether the defendant is one of the several classes of defendants against whom an attachment may issue. ( Van Alstyne v. Ervine, 11 N. Y. 331.) The order vacating the warrant of attachment should have been reversed, because it is itself irregular and without jurisdiction in ordering the delivery of the attached property to James M. Walsh, not a party to the action, and in whose favor no claim or proof was made that he acquired any lien on the property after it was attached. (Code Civ. Pro. §§ 682, 709; Delmore v. Owen, 44 Hun, 296.)</p> <p>The warrant is defective. (Arnot v. Wright, 55 Hun, 561.) There was a waiver of notice of motion. ( White v. Colton, 59 N. Y. 629 ; Thayer v. Marsh, 75 id. 640.) It was not necessary to specify the ground of the motion in the notice. (Code Civ. Pro. § 641; Winnebrenner v. Edgerton, 30 Barb. 185.) The warrant could not be awarded. (Code Civ. Pro. § 723.) The affidavit was insufficient. (Simar v. Canaday, 53 N. Y. 298; O' Reilly v. Freel, 37 How. Pr. 272, 274; Yates v. North, 44 N. Y. 271, 274; Ellison v. Bernstein, 60 id. 145, 148; Dintruff v. Tuthill, 43 N. Y. S. R. 704; Kneeland on Attachments, 368, 369, 370; M. N. Bank v. Ward, 35 Hun, 395, 398; Bennett v. Edwards, 27 id. 352, 353; Neil v. Sachs, 15 Wkly. Dig. 476, 477; S. C. Bank, v. Alberger, 78 N. Y. 252, 258; Murphy v. Jack, 142 id. 215; 1 Rumsey’s Pr. 519; W. Bank v. Meehan, 49 N. Y. S. R. 606.)</p>

The nature of the action and the facts, so far as material, •are stated in the opinion. The order of the General Term is appealable to this court. (Collins v. Collins, 80 N. Y. 1.) The court was without jurisdiction to grant this order. (Cutler v. Wright, 22 N. Y. 471; Lorillard v. Clyde, 86 id. 384; Allen v. Patterson, 7 id. 476; Prindle v. Caruthers, 15 id. 425 ; Angell v. Van Schaick, 132 id. 187; Code Civ.

<p>Appeal from judgment of the court of oyer and terminer of Montgomery county, entered upon a verdict, which convicted the defendant of the crime of murder in the first degree.</p>

<p>Appeal from judgment of the court of oyer and terminer of "Kings county, entered upon a verdict, which convicted the defendant of the crime of abortion.</p> <p>The facts, so far as material, are stated in the opinion.</p>

This action was brought against defendant, as indorsee of two instruments in the form of promissory notes, made by the Electric Power Company, payable to the order of defendant, who indorsed them to the United Electric Traction Company, by whom they were indorsed and delivered for value before maturity to plaintiff’s testatrix.

This action was brought by plaintiffs as receivers of the Madison Square Bank.

<p>1. Trial—Jury—Challenges—Criminal cases..</p> <p>Where the prisoner’s counsel is, in no case and in no manner, compelled to challenge until after the prosecution has fully exhausted its right, there is a full compliance with the provision of sections 385, 386 of the Criminal Code.</p> <p>2. Evidence—Homicide—Insanity.</p> <p>Where one of the defenses interposed to an indictment for murder was insanity, it is not error to permit the prosecution, after evidence has been given on the part of tlie defense as to words and actions of defendant on an occasion specified which, it was claimed, indicated insanity, to show that on that occasion defendant was intoxicated. __</p> <p>3. Homicide—Commission of felony.</p> <p>The word “ otherwise,” in section 183 of the Code, is not confined to felonies against property simply, but also includes a felony against a person other than the one killed.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made August 16, 1892, which affirmed a judgment in favor of plaintiffs entered upon the report of a referee.</p> <p>This action was brought to reinstate a mortgage executed by the defendant Lester H. Tozier and his wife to the defendant Orange L. Tozier, which was made in trust for the plaintiffs, Michael Kirsch and Theodore Kirsch, and for Peter Kirsch, now deceased, minor children of John Kirsch, to set aside a discharge of such mortgage executed by Orange L. Tozier, and for foreclosure of the mortgage and sale of the mortgaged premises for the benefit of the persons named as cestuA, que trust.</p> <p>The lands in question consist of 102 acres situate in the town of Sheldon, Wyoming county, New York, of which John Kirsch died seized in the year 1872. On the 8th day of January, 1873, the defendant Orange L. Tozier was appointed general guardian of the infant children, Michael J., Theodore and Peter Kirsch. At the time of his death John Kirsch owed debts which, with the incumbrances upon his real estate, exceeded the value of both his personal and real property. Orange L. Tozier and Elizabeth Kirsch, the latter the widow of the deceased, were appointed administrators of the estate of John Kirsch. Subsequently to this it was agreed between them and Lester H. Tozier, a son of Orange L. Tozier, that they should purchase the mortgages then existing on the farm, foreclose them, and procure a title to the land, and convey the same to Elizabeth Kirsch, who should-, in turn, by mortgage thereon, secure to Lester LI. Tozier the amount paid by him, and give a mortgage upon the farm of $1,000 to these three children. This arrangement was carried out, except that upon a sale of the lands, either by direct purchase at the sale or by deed coming immediately from the purchaser, Lester H. Tozier became the owner for the consideration, in all, of $1,131.56. Thereupon it was further arranged between Orange L. Tozier and the widow, Elizabeth Kirsch, that the widow should convey to the then holder of the title, Lester H. Tozier, all her interest in the lands to which she was entitled as widow, and that a mortgage should be executed by Lester H. Tozier to Orange L. Tozier, in trust for the three children, in the sum of $1,000, one-tliird thereof payable to each of the three children when he should arrive at age, with interest in the meantime. Having received the deed from Mrs. Elizabeth Kirsch, Lester H. Tozier and his wife executed to Orange L. Tozier, in' trust for Michael Kirsch, Peter Kirsch and Theodore Kirsch, “ minor children of John M. Kirsch, deceased,” the mortgage in question, dated the 15th day of October, 1875, expressing a consideration of $1,000, payable as follows: The sum of $333.33 November 13, 1887; the sum of $333.33 March 18, 1891, and the sum of $333.33 October 6, 1892, with interest payable annually from the 1st day of April, 1876. This instrument was delivered to Orange L. Tozier, who caused the same t© be recorded in the proper clerk’s office on the 23d day of October, 1875. The mortgagee and trustee paid the interest upon this mortgage to Elizabeth Kirsch, the mother of the children, in pursuance of a previous arrangement, until the spring of 1886, since which time no part of the principal or interest has been paid thereon by the trustee for the benefit of either of the children.</p> <p>On the 3d day of September, 1883, Lester H. Tozier and his wife executed and delivered a deed of the farm to Orange L. Tozier, at a consideration, as expressed in the deed, of $4,000, and the record title of such farm has since been in Orange L. Tozier. After acquiring this title, and on the 19th day of, February, 1886, Orange L. Tozier executed and acknowledged a discharge of the mortgage, and caused the same to be recorded in the proper clerk’s office on the 9th day of March, 1886. On the 27th day of January, 1886, before the execution of such discharge, Orange L. Tozier applied to the defendant, the Buffalo Savings Bank, for a loan of $2,000 upon his farm, which application was granted on the 1st day of February, 1886; and on an examination of the title of such farm, submitted to the officers of the bank, there was an abstract certified by the proper clerk of Wyoming county to the effect that Orange L. Tozier appeared to be the owner of the farm. On such abstract a memorandum of the mortgage, sought by this action to be reinstated, described the mortgage simply as being given for $1,000 and interest, “ in trust for Michael Kirsch, Theodore Kirsch and Peter Kirsch, minor children of John M. Kirsch, deceased,” having written across the face of the memorandum as follows: “ Discharged March 9, 1886, E. M. Jennings, Cleric.” The defendant, the Buffalo Savings Bank, at the time of taking its mortgage and advancing the money thereon, had not, either through any of its officers or attorneys, any knowledge or notice of the existence of this mortgage now sought to be reinstated in this action, except the memorandum on the abstract of title of its discharge, and the constructive notice given by the record of such mortgage.</p> <p>This action cannot be maintained by the plaintiffs for the relief asked for in the complaint. The title to the estate is in the defendant Orange L. Tozier, and the promise to pay was made to him and to no other person. (N. R. R. Co. v. Nolan, 48 N. Y. 513; Wetmore v. Porter, 92 id. 76; Boon v. C. S. Bank, 48 id. 83 ; Mabie v. Bailey, 95 id. 206; Bunn v. Vaughan, 1 Abb. Ct. App. Dec. 253; Perry on Trusts, §§ 225, 321, 613, 814; McPherson v. Rollins, 107 N. Y. 316.)</p> <p>The Buffalo Savings Bank was not chargeable with notice that Mr. Tozier had no authority to discharge the mortgage in question. (Field v. Schieffelin, 7 Johns. Ch. 150; Bogert v. Hertell, 4 Hill, 492; Swarthout v. Curtis, 5 N. Y. 301; Acer v. Westcott, 46 id. 354; Briggs v. Dams, 20 id. 15.)</p> <p>It appears by an examination of the case that the appellants made no requests for findings, and, hence, the question of whether the findings were against the weight of evidence is not presented by any exception contained in the record. (Hugo v. Shank, 4 N. Y. Supp. 929.) Plaintiffs can maintain this action. (Code Civ. Pro. §§ 488, 499 ; Hubbell v. Medbury, 53 N. Y. 102; Dodge v. Stevens, 94 id. 209 ; Waterman v. Webster, 108 id. 158.) The mortgage in question in terms recites that it is given to Orange L. Tozier in trust for the plaintiffs, the children of John Kirsch, deceased, naming each of them, and the execution and delivery thereof to Orange L. Tozier, in trust, made him trustee of an express trust. (Code Civ. Pro. § 449 ; Hathaway v. Payne, 34 N. Y. 107; Worrall v. Munn, 5 id. 238; Braymon v. Bingham, 32 id. 491 People v. Bostwick, 26 id. 483 ; Wallace v. Burdell, 97 id. 14.) The record of this mortgage, which recited on its face-that it was executed and given in trust for these infants, was constructive notice to the defendant, the Buffalo Savings Bank, that Michael J. Kirsch, Peter Kirsch and Theodore Kirsch each had a beneficial interest in the execution of the trust so created. ( Waterman v. Webster, 108 N. Y. 165.) The order of .the Special Term, granting an additional allowance of costs, and the decision of the General Term, modifying and affirming such order, was right. (Code Civ. Pro. § 3253.)</p>

the second judicial department, entered upon an order made September 18, 1894, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of Special Term overruling a demurrer to the complaint.

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

<p>Under the provisions of the ¡New York Consolidation Act (§ 273, chap. 410, Laws of 1882), declaring that “ absence without leave of any member of the police force for five consecutive days shall be deemed and held to be a resignation, and the member so absent shall at the expiration of said period cease to be a member of the police force,” the absence that will deprive a member of his place must be voluntary and intentional. Where, therefore, a member of the force was dismissed for absence without leave for over five days, and it appeared that the absence was not his conscious act, but the result of temporary mental aberration, held, that the dismissal was error.</p>

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made the second Monday of February, 1893, which affirmed an order of Special Term denying a motion by defendant to dismiss the petition of the plaintiff for the condemnation of certain lands belonging to defendants for railroad purposes.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>A foreign corporation can acquire no right to condemn lands in this state unless such right is expressly conferred by statute. This rule applies equally to all corporations, foreign or domestic. The statute delegating the right to exercise the power of eminent domain, being a right in derogation of common law, must be construed strictly and cannot be extended by implication. (People v. Smith, 21 N. Y. 595; N. Y. C. & H. R. R. R. Co. v. Kipp, 46 id. 546 ; In re Comrs. Central Park, 50 id. 493.) It is á well-settled rule of construction that a general law cannot repeal, modify or extend a special law by implication. (Whipple v. Christian, 80 N. Y. 523 ; McKenna v. Edmundstone, 91 id. 231; People v. Jaehne, 103 id. 182; In re Comrs. of Central Park, 50 id. 493 ; Laws of 1850, chap. 140, §§ 13,49 ; Code Civ. Pro. § 3359.) The order made by the county judge of Westchester county denying the application of the village of Eew Bochelle to condemn this property has never been modified or reversed and is res adjudicatei and binding upon the plaintiff in this proceeding. (Pray v. Hegeman, 98 N. Y. 351; Marsh v. Masterton, 101 id. 401; C. P. Co. v. Walker, 114 id. 7; Decker v. Decker, 108 id. 134; Lorillard v. Clyde, 122 id. 41; Leavitt v. Wolcott, 95 id. 212; Parkhurst v. Hendell, 10 id. 386.)</p> <p>The plaintiff had authority to take this proceeding to acquire land for railroad purposes. (Johnson v. H. R. R. R. Co., 49 N. Y. 455; In re N. Y. C. R. R. Co., 4 Hun, 381; Laws of 1890, chap. 565 ; Mangam v. City of Brooklyn, 98 N. Y. 591; Mosier v. Hilton, 15 Barb. 657, 665; Clarkson v. H. R. R. R. Co., 12 N. Y. 304; Demarest v. Flack, 128 id. 205; N. Y. & E. R. R. Co. v. Young, 33 Penn. St. 175; Code Civ. Pro. § 3359.) The issues of fact made by the general denial of the allegations of the petition are judicial questions to be determined from the evidence and circumstances of the case. (In re N. Y., L. & W. R. Co., 35 Hun, 220, 229 ; In re Rensselaer v. S. R. R. Co., 43 N. Y. 137, 144; In re N. Y. & H. R. R. Co. v. Kip, 46 id. 552; In re N. Y. C. R. R. Co., 66 id. 407, 410; In re N. Y. C. R. R. Co., 77 id. 264.) This court will not review the conclusion of the Supreme Court upon these questions. (In re U. E. R. R. Co., 113 N. Y. 275, 282; In re Thomp son, 121 id. 277; In re City of Rochester, 137 id. 243; In re Middletown, 82 id. 200; In re Marsh, 71 id. 318; In re P. P. & C. I. R. R. Co., 67 id. 377.) The questions involved herein are not res adjudicata. (Laws of 1872, chap. 440; Laws of 1867, chap. 176; Laws of 1864, chap. 249.)</p>

<p>While, where a wrong has been done from which pecuniary injury has resulted, or when injury is the natural or probable result of the wrong, the injured party is not remediless, although the extent of the injury is not capable of precise proof, yet, when the damages claimed are neither the probable result of the wrong nor capable of proof, they cannot be awarded by a jury.</p> <p>In an action by a husband to recover damages resulting from a personal injury to his wife, alleged to have been caused by defendant’s negligence, the evidence tended to show that in consequence of the injury, the wife had a miscarriage. The court permitted the jury to consider and include in their verdict “ any damages arising from the injury and resulting in depriving the plaintiff of prospective offspring.” Held, error.</p> <p>The injury to the wife was caused by the closing of the gate to the platform of one of defendant’s cars, as she was seeking to enter the car. The wife testified to the injury, that the guard was looking another way, and that immediately after the injury she made an exclamation of pain. She was then permitted to testify to an insulting remark made by the guard in reply to her exclamation of pain. Held, error.</p> <p>While, in such an action, proximity in time with the act causing the injury is essential to make what was said by a third person competent evidence as part of the res gesta, that alone is insufficient; to make it competent what was said must be part of the principal fact, and so part of the act itself; that is, naturally accompanying the act, or calculated to unfold its character and quality.</p>

<p>A seal unnecessarily affixed to a contract for the sale of personal property cannot affect the rights of the parties, and every defense.is open to either which would exist had the writing not been sealed.</p> <p>A mere device of one party to a contract intended to shield him from the results of his own fraud practiced upon .the other party cannot be the basis of an equitable estoppel.</p> <p>So, also, where one party to a contract has perpetrated a fraud upon the other by means of which the latter was induced to enter into the contract, he cannot be precluded from seeking redress by a provision in the contract purporting to grant to the former immunity against the consequences of any fraud.</p> <p>Defendant sold to plaintiff his business, the fixtures and other property in his store. The contract of sale was in writing, under seal and contained a clause to the effect that it was understood and agreed that defendant had made no statements or representations for the purpose of inducing the sale, other than that he had been engaged in the business since 1867. In an action to set aside the sale and recover the consideration paid on the ground that plaintiff was induced to purchase by false and fraudulent representations as to the character of the property, the extent of the business and the income derived therefrom, it appeared that after the negotiations had been completed and the agreement drawn, the clause specified was inserted at the request of defendant. Held, that the provision was not a covenant but simply a statement in the nature of a certificate as to a fact; and that plaintiff was not precluded thereby from showing the fraud and obtaining relief therefrom.</p> <p>Reported below, 3 Misc. Rep. 535.</p>

This action was brought upon the following agreement: “ Cattaraugus, N. Y., Feb. 18, 1890. “ This agreement made by and between the Cattaraugus Water Company of Cattaraugus, N. Y., and F. S. Oakes, of the same place, Witnesseth: The Cattaraugus Water Company hereby agrees to and with F. S. Oakes to pay him the sum of One Thousand Dollars in consideration of his services to said Water Company in securing right of way, hydrant rental and placing investments, and in all things…

<p>An insane person is liable for his torts the same as a sane person, except, for those torts in which malice and, therefore, intention, is a necessary-ingredient.</p> <p>In respect to this liability there is no distinction between torts of nonfeasance and of misfeasance, and so an insane person is liable for injuries caused by his tortious negligence, and so far as this liability is-concerned, is held to the same degree of care and diligence as a person of sound mind.</p> <p>Where one of several joint owners of a vessel by contract with the others, takes the vessel to sail it on shares, he to man her, to pay the crew, furnish supplies and have the absolute control and management thereof, he is in no sense the agent of his co-owners, but is the owner of the-vessel pro hac vice.</p> <p>Where the vessel is lost through the negligence of such an owner, he is. liable to his co-owners for the loss.</p> <p>Moody v. Buck (1 Sandf. 304), distinguished and disapproved.</p> <p>In an action to recover for the loss of a vessel, alleged to have been caused by defendant’s negligence, these facts appeared: Defendant, who was one of several joint owners of the vessel, he owning a minority interest, was sailing her under a contract with his co-owners as above specified ; she encountered storms, and defendant for more than two days was constantly on duty; then becoming exhausted he went to his cabin, leaving the vessel in charge of the mate and crew. The mate found the rudder broken and useless; he caused defendant to come on deck, but the latter refused to believe the vessel was in any trouble and refused the help of tugs whose services were offered, the masters of which told him the vessel was drifting on shore. She did drift on shore in the daytime without-any effort on the part of defendant or any of his crew to save her and she became a total loss. Defendant testified that from the time he came into his cabin until he found himself on shore he was unconscious and knew nothing that had occured. The case was submitted to the jury on the theory that defendant, if sane, was guilty of negligence, but if insane was not responsible for the loss. Held, error; that, at least, unless it appeared that defendant had become insane solely on account of his efforts to save the vessel during the storm, he was chargeable with the consequences of his negligence.</p> <p>As to whether, even in such a case, he would not be liable for the negligence of his servants, the mate and crew, quaire.</p> <p>Hays v. Phenix Ins. Co. (25 J. & S. 199; affd., 137 N. Y. 656) distinguished.</p> <p>The authorities on the subject of the liability of insane persons for torts collated.</p>

<p>1. Election law—Violations—Principal.</p> <p>Section 29 of the Penal Code applies to the provisions of section 41c of said Code. .....</p> <p>2. Same.</p> <p>A person, who induces or procures the members of a board of registry willfully to violate section 33 of Election Law, in relation to the registration of voters, may be indicted as a principal jointly1 with the members of the board.</p> <p>3. Same—Indictment.</p> <p>The indictment, in such case, need not charge a conspiracy, as the conspiracy, if shown, is evidence in support of the charge made.</p> <p>4. Same—Evidence.</p> <p>When evidence given on the subject of a conspiracy is sufficient for the jury, the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent.</p> <p>5. Same.</p> <p>The circumstances of the arrest of the persons at the town hall, who were in search of the lists or watching- the election, were admissible.</p> <p>6. Same.</p> <p>The power that the defendant wielded through public offices or through the receipt and disbursement of large sums of money, was, under the circumstances a proper inquiry. - i</p> <p>7. Same.</p> <p>Evidence as to the arrangement of the election districcs was properly received.</p> <p>8. Same.</p> <p>The poll lists were properly given in evidence.</p> <p>9. Same.</p> <p>The evidence as to the number of legal voters in the town was competent.</p> <p>10. Same.</p> <p>The questions relating to defendant’s official acts which had some bearing upon his power, influence and patronage, were admissible, on cross-examination, within a reasonable discretion.</p> <p>11. Same.</p> <p>Where the defendant makes reputation a subject of inquiry, the people have the right to put before the jury what that reputation is, though it includes the ability to influence and control elections.</p> <p>12. Same.</p> <p>Statement of person in charg-e that registry lists could not be seen without an order from defendant was competent, especially in view of defendant’s subsequent admission that he was acting under his orders.</p> <p>13. Same.</p> <p>Proof that an order of the court, in the proceedings to obtain access to the several lists, was served upon the chairman of the board in the first district, and what was stated to him at the time, was proper.</p> <p>14. Same.</p> <p>Exception to evidence of declarations by defendant to the witness in a conversation through the telephone, when he did not know defendant or recognize his voice, was good.</p> <p>15. Same.</p> <p>But this error was cured when defendant, on the stand, gave his version of the same conversation.</p> <p>16. Same.</p> <p>Proof of the absence of an alleged conspirator from other important duties, to attend the registry board, thoug-h a somewhat remote circumstance, cannot be said to be a prejudical error.</p> <p>17 Appeal—Evidence.</p> <p>The statement of inadmissible testimony, not called for by any question of the prosecution, is not error in the absence of a motion to strike it out.</p>

This action was brought to set aside a chattel mortgage, and to recover the property covered by it or its value.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made June 29, 1893, which reversed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term which granted a new trial.</p> <p>The nature of the action and the facts, so far as material,, are stated in the opinion.</p> <p>Plaintiff’s complaint was-properly dismissed by the trial court. (Code Civ. Pro. §§ 446, 447, 448, 449, 452; Simpson v. Satterlee, 64 N. Y. 657; Sherman v. Parish, 53 id. 483; Van Epps v. Van Dusen, 4 Paige, 64.)</p> <p>The court at Special Term, erred in deciding that the assignments were void as against the defendants, who had no interest in the estate of Elizabeth Read. Louis Knell had no interest entitling him to question the acts of the administrator. (Perry on Trusts, § 205 ; Forbes v. Halsey, 26 N. Y. 65 ; Harrington v. Brown, 5 Pick. 519 ; Andrews v. Durane, 18 N. Y. 496; Jennison v. Hapgood, 7 Pick. 1; Hawley v. Cramer, 4 Cow. 719; Ward v. Smith, 3 Sandf. Ch. 592; Baker v. Read, 18 Beav. 398 ; Musselman v. Eshelman, 10 Barr, 394; Bell v. Webb, 2 Gill, 164; Todd v. Moore, 1 Leigh, 457.) The plaintiff is the real party in interest. (Sheridan v. Mayor, etc., 68 N. Y. 30; Morris v. Tuthill, 72 id. 575 ; Peterson v. C. Bank, 32 id. 21.) The court at the trial term did not pass upon any other question than the validity of the assignments. If its decision on that point was erroneous then the judgment was properly reversed and a new trial granted, and the decision of the General Term should be affirmed and judgment absolute given for the plaintiff. (Lake v. Nathans, 67 N. Y. 589; Godfrey v. Moser, 66 id. 250.) The question as to whether representatives of E. A. S. Read Rockwell were necessary parties or not, is not one necessary to be considered on this appeal. (Code Civ. Pro. § 723.) There was no sufficient plea in respect to a defect of parties. For a successful plea in abatement, the plea must show that there is some person living who is entitled to be joined. (1 Chitty on Plead. 452; Donovan v. Clark, 76 Hun, 339; People v. Keyser, 28 N. Y. 226.) As the holder of the mortgage, the plaintiff might sue alone, even though he held the mortgage in part for the benefit of another. It is a contract running to him; he sues upon the mortgage and recovers on it. (Code Civ. Pro. § 449.) The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights. (Code Civ. Pro. § 452.) The plaintiff is administrator of Elizabeth Read’s estate, has given security for its assets, and if there were any one but himself interested in it, he would be equally accountable for the value of the estate that came to his hands whether he assigned the mortgage or collected it as an individual or as administrator. No one is prejudiced or defrauded by either course. (In re Pruyn, 114 N. Y. 544.) Defendant has nothing to do with the good faith of the assignment or the effect of it upon the rights of others. The assignor was, as to the defendant, the legal owner of the mortgage; he is estopped by his assignment from denying its validity, and the defendant will be protected in paying to the assignee under a judgment in his favor. (Sheridan v. Mayor, etc., 68 N. Y. 32 ; Peterson v. C. Bank, 32 id. 1; Morris v. Tuthill, 7.2 id. 575 ; 35 Hun, 544.)</p>

This action was brought to restrain defendant from carrying on a bakery and confectionery business in the village of Little Falls, and to recover damages for the violation of a contract not to engage in such business during five years from March 1, 1888.

This action was brought for the foreclosure of a mortgage executed by the defendant Michael J. Varley to one Frank T. Ferris, and assigned by him to the defendant Mark T. Ferris, who assigned to plaintiff with a guaranty set forth in the opinion, wherein the facts, so far as material, are stated.

This action was brought to have a mortgage executed by Ann E. Swarthout Ranier to the defendant, her husband, declared fraudulent and void and canceled of record as a cloud on the title to certain lands. The facts, so far as material, are stated in the opinion.

This was an action for partition. The facts, so far as material, are stated in the opinion. Silas N. Carman and his successors in interest are clearly estopped as against the mortgagee in the $10,000 mortgage, and his successors, from claiming any interest in the lands mortgaged. (T. B. Co. v. Duncan, 86 N. Y. 221; Storrs v. Barker, 6 Johns.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in denying defendant’s motion for a non-suit. (Laws of 1848, chap. 40, § 24; Dean v. Mace, 19 Hun, 391; Farnsworth v. Wood, 91 N. Y. 308; Crippin v. Hudson, 13 id. 161; R. M. N. Bank, v. Bliss, 89 id. 338; Code Civ. Pro. § 1784; Slee v. Bloom, 5 Johns.

The nature of the action and the facts, so far as material, are stated in the opinion. The allegations of the complaint embody the admission that Esther C. Lutts and Maria Leach did know of the execution and delivery of the several mortgages. The several discharges were found by the trial judge executed and delivered without the concurrence of either Esther 0. Townsend or Maria Leach. No evidence is competent or if admitted effectual to contradict these admissions.

The nature of the action and the facts, so far as material, are stated in the opinion. The admission that the partition of 1809 is the common source of title is fatal to the plaintiff’s case. (Code Civ. Pro. §§ 368-372.) The acts of trespass committed by the grantors of the defendants in cutting cedars on the property did not constitute possession.

Opdyke, Jr., from the office of attorney and counselor at law for deceit and fraud in the practice of his profession. The facts, so far as material, are stated in the opinion. The order made by the General Term is reviewable in this court. (Eldridgd's Case, 82 N. Y. 167.) The charges made in the name of Mr. Ryan have not been sustained.

This action was brought to restrain defendant, a corporation organized for the purpose of supplying plaintiff with water, from laying its water mains in the Boston Post road within plaintiff’s municipal limits. The facts, so far as material, are stated in the opinion. The statute only authorized a water company to lay its, pipes in the streets of an adjoining village in order to get from its source of supply to the village to be supplied.

This action was brought by plaintiff, a corporation organized under the laws of Illinois, to recover an unpaid subscription to its stock by defendant, who is a resident of this state, and was one of plaintiff’s incorporators and original subscribers to its capital stock. 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. Under the procedure prior to the Code, an equitable title could not be set up in defense to the legal title of the plaintiff. (Jackson v. Deyo, 3 Johns. 422; Jackson v. Van Slyck, 8 id. 487.) The answers did not contain counterclaims. (Code Civ.

This action was brought to recover commissions claimed to be due plaintiff as a salesman in defendant’s employ. The facts, so far as material, are stated in the opinion. The referee found facts unsupported by any testimony, which findings were duly excepted to by the defendant, and the General Term erroneously refused to review the testimony, thus presenting a pure question of law. (Halpin v. P. Ins.

<p>Appeal from judgment of the General Term of the Supreme 'Court in the fifth judicial department, entered upon an order made January 18, 1893, which affirmed a judgment in favor of defendants entered upon a verdict.</p> <p>This action was brought to recover money loaned to and paid out for defendants by plaintiffs, and also for a machine sold to them.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in refusing to charge as requested, that the burden of proof as to the terms of the contract set up by the defendants was upon them, and in charging that the burden of proof as to that contract was upon the plaintiffs. (Spencer v. C. M. L. Ins. Assn., 142 N. Y. 505; Murray v. N. Y. L. Ins. Co., 85 id. 236; Conselyea v. Swift, 103 id. 604; Smith v. Sargent, 67 Barb. 243 ; Conner v. Keese, 105 N. Y. 643 ; Millard v. Thorn, 56 id. 402; Johnson v. Plowman, 49 Barb. 472; Conklin v. Conklin, 20 Hun, 278.)</p> <p>The court committed no error in refusing to charge as requested by plaintiffs’ counsel. (Taylor on Ev. § 338; 1 Greenl. on Ev. 94; Henemann v. Heard, 62 N. H. 448; Roberts v. Chittenden, 88 id. 33.)</p>

<p>Appeal, from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 5,1893, which overruled plaintiff’s exceptions and directed judgment in favor of defendant dismissing the complaint.</p> <p>This action was brought to recover damages alleged to have been sustained by plaintiff through the issuing of a spurious warehouse receipt by defendant.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>It was error to exclude the conversation between Mr. Stone and the officers of the bank at the time the warehouse receipt was delivered to the bank and the money advanced by it. (Whart. on Ev. §§ 259, 1176 ; Greenl. on Ev. § 113 ; M. Bank v. Griswold, 72 N. Y. 472; Cowing v. Altman, 71 id. 435 ; Wilson v. M. R. Co., 120 id. 145; H. N. Bank v. A. D. & T. Co.) It was error to dismiss the complaint at the close of the plaintiff’s case. (Griswold v. Haven, 25 N. Y. 599 ; N. Y. & N. H. R. R. Co. v. Schuyler, 34 id. 30 ; Bruff v. Mali, 36 id. 200; Bank of Batavia v. E. R. R. Co., 106 id. 195 ; F. A. Bank v. F. S. S. R. R. Co., 137 id. 237; Titus v. G. W. T. Co., 61 id. 237; Shaw v. P. P. G. M. Co., L. R. [13 Q. B.] 103 ;. Tome v. P. B. R. R. Co., 39 Md. 85; Magee v. Badger, 34 N. Y. 247; Belmont v. Hodge, 35 id. 65 ; Chapman v. Rose, 56 id. 137; D. C. Ins. Co. v. Hachfield, 73 id. 226.) The' form of action is proper, as a corporation is liable in an action for deceit for the false' representations of its officers and agents. (F. S. Inst. v. N. Bank, 80 N. Y. 162; Barwick v. E. J. S. Bank, L. R. [2 Ex.] 259.)</p> <p>Defendant’s motion to dismiss the complaint was properly granted. (Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 195 ; F. & M. Bank v. B. & D. Bank, 16 id. 125 ; Wilson v. M. E. R. Co., 120 id. 145; Pollard v. Vinton, 105 U. S. 7; M. L. Ins. Co. v. F. S. S. & G. S. F. Co., 139 N. Y. 146; W. S. L. S. Bank v. S. C. Bank, 95 U. S. 557; N. P. Bank v. G. A. M. W. & S. Co., 116 N. Y. ; Voltz v. Blackman, 64 id. 440; Fielden v. Lahens, 2 Abb. Ct. App. Dec. 111; W. S. L. S. Bank v. Parmalee, 95 U. S. 557; Gerard v, McCormick, 130 N. Y. 261; Shaw v. M. N. Bank, 101 U. S. 557; C. Bank v. McCrea, 106 Ill. 281; Carter v. B. L. Ins. Co., 110 N. Y. 115.) Any statements or representations made by Stone at the time lie procured this loan from the bank to himself individually must be considered as made by him as an individual and for his own individual purpose, and not by him as an officer of the defendant for any purpose pertaining to the business of the defendant. (M. L. Ins. Co. v. F. S. S. & G. S. F. R. R. Co., 139 N. Y. 146; Farrington v. S. B. R. R. Co., 158 Mass. 406.)</p>

Appeals from orders of the General Term of the Supreme Court in the third judicial department, made July 14, 1894, which affirmed an order of Special Term in each of the above-entitled actions vacating a stay of proceedings and denying a motion by this appellant to set aside an execution issued therein and orders for his examination in supplementary proceedings. The facts, so far as material, are stated in the opinion.

This action was brought by plaintiff against defendant, her husband, to have an ante-nuptial agreement canceled and declared void. The facts, so far as material, are stated in the opinion. The ante-nuptial agreement executed between the parties to this action is a valid legal instrument and binds the parties thereto by its terms. (Story’s Eq.

This action was brought to recover damages for alleged fraud.

of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 1, 1893, which reversed an order of Special Term setting aside the report of commissioners of appraisal of the franchise and property of the Long Island Water Supply Company, and which confirmed said report.