Volume 144 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The amount in controversy, including counterclaim, is over $500, and the case is within the jurisdiction of this court.

713, Laws of 1887), and granted a new hearing. The facts, so far as material, are stated in the opinion. The property in this state is subject to the tax, although the legatees are aliens, and the legacies or some part thereof were paid abroad.

The nature of the action and the facts, so far as material, are •stated in the opinion. The petition did not give the Surrogate’s Court jurisdiction, because it did not set forth, as nearly as the petitioners could upon diligent inquiry ascertain them, the names of all the heirs of the decedent. (Code Civ. Pro. §§ 2752, subd. 3, 2759.) The collateral heirs on the part of Margaret Nichols are ignored. (Smith v. Luce, 14 Wend. 237; Mott v. Lawrence, 17 How.

order made June 23, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at an equity term. . The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff established no cause of action.

The action was brought by an electric light company as lessee, to enjoin the defendant, the landlord, from ejecting it from the premises, Nos. 421 431, on 24th and 25th streets in the city of New York, and for damages sustained from a breach of covenants on the part of the lessor. The parties represent the original parties to the lease, and to the agreement for a lease, which agreement was dated November 15, 1877.

The nature of the action and the facts, so far as material, are stated in the opinion. The decision and judgment appealed from are erroneous in that they undertake to perpetually enjoin the appellants from proceeding with the sale of the premises under the decree of the Circuit Court of the United States, a copy of which is appended to the answer of the defendant, the Central National Bank of Boston, and from suffering said sale to proceed.

• ■ The facts, so far as material, are stated in the opinion. The application for judgment- on the alternative writ and the returns was properly denied. (Gilbert v. Cram, 12 How. Pr. 455; McGregor v. McGregor, 35 id. 385, 393; Van Giesen v. Van Giesen, 10 N. Y. 316, 318; People v. Bd. of Police, 107 id. 235, 240.) The validity of the claim, to provide funds to pay which the writ is asked, may be inquired into.

Also appeal from an order amending the above order. The nature of the action and the facts, so far as material, are stated in the opinion. The devolution of the property in question must be governed by the rules applicable to personal property, the will effecting an equitable conversion of the realty into money on the termination of the widowhood of the testator’s wife, whether by marriage or death.

<p>In order to give a littoral proprietor title by accretion, the increase must be by such imperceptible degrees that, although persons were able to perceive from time to time that the land had increased on the water line, they could not perceive the progress of the accumulation at the time it was made.</p> <p>The filling up of a bay in a river by the owner of the adjoining uplands by cutting down the bank above the shore line, does not give title to the bay by accretion.</p> <p>Nor can such owner acquire title to the land under water belonging to the state by thus entering upon it without any right and filling it up, and, as between him and the state, it still remains land “under water.”</p> <p>A grant from the state of lands under navigable waters may not be impeached collaterally unless void on its face.</p> <p>It seems, it can only be assailed by a direct proceeding to review the determinations of the commissioners of the land office, or by an action in equity to set it aside, and the recitals in the grant are prima facie evidence of compliance with the preliminary requisites of the statute.</p> <p>While the state holds the title to lands under navigable waters in a certain sense as trustee for the public, it is competent for the legislature to authorize and regulate grants of the same for public or such other purposes as it may determine to be for the best interests of the state.</p> <p>The provisions, therefore, of the General Railroad Act (§§ 35, 49, chap. 140, Laws of 1850), empowering the commissioners of the land office to grant to any railroad "company any lands belonging to the state required for the purposes of its road, as applicable to lands under navigable waters, are constitutional.</p> <p>H. T. O.&H.R.R. R. Go. v. Aldridge (135 N. Y. 83); Rumseyr. H. T. & H. E. R. R. Go. (114 id. 423; S. O., 133 id. 79; 136 id. 543), distinguished.</p> <p>Said provisions are not limited by the provision of the Revised Statutes (1 R. S. 208, § 67) prohibiting grants of land under water to any one except the adjacent riparian owner. The provisions of the Railroad Act, being subsequent and independent and for a special purpose, enlarge the powers of the commissioners and are not affected by the restrictions of the Revised Statutes.</p> <p>A grant by said commissioners to a railroad company of land under the waters of a navigable river is valid and effectual to vest in the company all the rights that the state had therein.</p> <p>Such a grant, however, does not extinguish or impair the easements or riparian rights of the owners of the uplands, such as the right of access to the navigable part of the river, the right to make a landing, wharf or pier, and the right of passage to and from the same.</p> <p>Where, therefore, the roadbed of a railroad .company built upon land granted by the state passes between the upland and the usual place of access to the river, and cannot be conveniently crossed, it is the duty of the company, at its own expense, to construct and maintain convenient passes or roads across or under the railroad for the passage of persons, teams, etc., from the upland to the river front.</p> <p>The route of the H. R. R. Co., which was incorporated in 1846 (Chap. 216, Laws of 1846), by the map filed locating its road, .crossed a large bay on the east side of the Hudson river, requiring a strip of land in the bed of the river below high-water mark, of the width of seventy-three feet. S’., the then owner of the upland, executed to the com- . pony a conveyance of the strip. There was no stipulation in the deed binding the company to construct a culvert or other means of access by water from the bay to the channel of the river; it reserved, however, all the rights of the grantor to all lands below high-water mark, except that portion taken by the company for its use as then located. The company covenanted that the grantor, his heirs and assigns, might at any time erect a wharf or wharves into the river and connect the same with the property line of the road, and that it would make and prepare a way over its track for free passage to any wharf so erected. Held, that by the deed the original riparian rights of the grantor, except as specially provided therein, were cut down and diminished to such an extent as was reasonably necessary for the maintenance and operation of the road upon the seventy-three feet.</p> <p>The railroad was constructed by building a solid embankment of earth across said strip upon the land so granted, cutting off that part of the bay east of it from access to the river. In 1853 one of plaintiffs’ predecessors in title filled in the hay between the shore and the railroad with earth from the uplands. In 1868, defendant having succeeded to the rights and franchises of the H. R. R. Co., made the necessary surveys and maps for the purpose of widening its roadbed. This included a strip of land across said bay east of and adjoining the original roadbed. Defendant procured a patent for this strip from the commissioners of the land office under the provisions of said Railroad Act. In 1869 and 1887 plaintiffs or their grantors, who had succeeded to P.’s title to the uplands, obtained from the commissioners patents for a strip of land under water westerly of and adjoining the original exterior line of the railroad. In 1870 defendant filled in the strip covered by its state grant, raising it up to the grade of the original roadbed, and laid tracks thereon. In an action to restrain defendant from operating its road over said strip, held, that plaintiffs, by the filling in of said land, acquired no title thereto; that defendant’s grant from the state was not void on its face at least, and so could not be impeached in this action, and that plaintiffs were not entitled to the relief sought.</p> <p>The trial court found that the rails and ties placed by defendant upon the land in question projected above the surface of the ground so as to impede passage and obstruct access to the river from the upland, and at times it maintains standing cars thereon. Held, that defendant was bound, both by its covenant in the deed from F. and by its general obligations to plaintiffs as riparian owners, to construct and maintain a suitable, safe and reasonably convenient way or ways over its roadbed, and furnish access to the river front; and that plaintiffs were entitled to a judgment requiring it to perform those duties and obligations.</p>

This action was brought against the sheriff of Bangs county to recover possession of certain chattels levied on by him under an execution against Jonas Salomon and Emanuel Wolf. They were not made parties, and now apply for leave to intervene as parties defendant. Further facts are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The mode of assessment pointed out by the statute has been strictly followed by the commissioners, and no error in their proceedings is shown by the return. (People ex rel. v. Coleman, 126 N. Y. 433; People ex rel. v. Comrs. of Taxes, 137 id. 544; M. F. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion.' The judgment appealed from ■was a part of the decree in the equity ease, and was a necessary result from the facts admitted on the trial and found by the referee.

<p>In order to sustain the reversal hy the General Term on the facts of a judgment entered upon the report of a referee it must appear that the findings of the referee are against the weight of evidence, or that the proofs so greatly preponderate in favor of a contrary result that it can he said with reasonable certainty that his conclusions were erroneous.</p> <p>"Where, in an action against an elevated railroad 'company to restrain the operation of its road in a street in front of plaintiff’s premises and for damages, there was a finding of the referee, supported by evidence, to the effect that there were no actual, substantial or peculiar benefits to plaintiff’s property arising from the construction or maintenance of defendant’s road in front thereof, held, that a refusal of the referee to find at defendant’s request that the easements appurtenant to plaintiff’s land, taken for the railway use, aside from any damage to the land, have in themselves only a nominal value, while in the abstract erroneous, was harmless, and so not a ground for reversal.</p> <p>It is only when it appears that the court in awarding damages was guided by an erroneous rule, founded upon a refusal to make such a finding, that a reversal is required.</p> <p>"While in such an action proof of the actual rents earned hy the property is desirable, its place may be supplied by other proof equally convincing and satisfactory.</p>

<p>1. Extoktioh—Attempt to commit.</p> <p>Where a threat is made with intent to commit the crime of extortion, and tends, but fails, to effect its commission, it is plainly, within the statute, an attempt to commit the crime.</p> <p>3. Same.</p> <p>Such crime depends upon the mind and intent of the wrongdoer, and not on the effect or result upon the person sought to be coerced.</p> <p>3. Same</p> <p>The' accused cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.</p> <p>4. Trial—Identification—Criminal cases.</p> <p>It is not error, in a crminal case, for the court to compel the defendant to stand up for identification.</p> <p>6. Evidence—Extortion.</p> <p>On the trial of an indictment for an attempt to commit the crime of extortion, the defendant may, in order to show the reason for his intimacy, and rides with and visits to and with the prosecutrix, which were established by the prosecution, prove that he acted, in so doing, under the general instructions of the Society for the Prevention of Crime, whose agent he was, and that he reported his acts to its officers and followed their directions.</p>

The facts, so far as material, are stated in the opinion. The act in question plainly indicates the intention of the legislature to extend the exemption to property devised or bequeathed to foreign religious corporations. (Laws of 1892, chaps. 169, 399, § 25; Laws of 1890, chap. 553; In re Enston, 113 N. Y. 178.

The nature of the action and the material facts, so far as material, are stated in the opinion. The appeal from the order will lie to this court on the ground of the insufficiency of the complaint. The temporary injunction was unauthorized, and the granting of it was an error of. law and reviewable here.

This action was for the foreclosure of a mortgage executed by the defendants Ervin C. Gollner and wife, defendants Watson & Pittinger, respondents, claiming the surplus as holders of a junior mortgage on the premises, and the Special Term awarded it to them. The facts, so far as material, are stated in the opinion.

Common Pleas for the city and county of Hew York, entered upon an order made April 10, 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. This was an action for libel.

This action was brought to compel the specific performance of a contract. The facts, so far as material, are stated in the opinion. This case being an appeal from a decision of the General Term reversing a judgment rendered upon a trial at Special Term without a jury, and the judgment stating that such reversal was for errors of both law and fact, this court must review such decision upon the questions of fact as well as the questions of law. (Code Civ.

<p>In an action to recover damages for injuries alleged to have resulted from defendant’s negligence in permitting a pile of dirt to remain in one of its streets, in the night time, without a light or other danger signal, these facts appeared R., who owned a lot fronting on said street, had been engaged for three or four days previous to the accident in filling up the same. Barth for- that purpose was unloaded in the street and taken thence in wheelbarrows to the lot; three men were continually •engaged in so removing it. While at times dirt was drawn to the street faster than it was wheeled away, there was no substantial proof that the dirt drawn on any one day to the street was not removed on the same day, with the exception of the one preceding the night of the accident. There was no evidence that defendant had any actual notice of the pile of dirt. Held, that there was nothing in the evidence to charge defendant with constructive notice; that the evidence failed to make out a cause of action; and so, that a refusal to non-suit was error.</p>

The facts, so far as material, are stated in the opinion. By the grammatical and natural construction of the act as amended in 1889, the words “ wholly engaged in carrying on manufacture or mining ores within this state” qualify and relate only to the word “ companies ” immediately preceding them.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned referee, having virtually dismissed the complaint as to the sole cause of action presented by the pleadings, erred in attempting to grant relief upon an incidental matter which did not constitute an issue in the action, and was not embraced within the orden of reference, and as to which a right to a trial by jury existed.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made June 30, 1893, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and ordered a new trial.</p> <p>This action was brought to foreclose a mortgage given by the defendant to the plaintiff on the 16th of October, 1891. The mortgage recites that,</p> <p>“Whebeas, The said party of the second part has signed as one surety a bond or recognizance in the penal sum of ten thousand dollars, that Thomas O’Brien shall appear to answer the charge against him in whatever court it may be presented, and shall at all times render himself amenable to the orders and process of the court, and, if convicted, shall appear for judgment, and render himself in execution thereof, and which bond or recognizance was entered into this day before Hon. Jacob H. Chite, Albany county judge; and the said party of the first part is desirous of indemnifying and saving harmless the said party of the second part from any or all loss or damage upon said bond or recognizance;</p> <p>“How, therefore, this indenture witnesseth that the said party of the first part, in consideration of the sum of one dollar to him in hand paid by the party of .the second part, and for the better securing of the said party of the second part, does grant and release unto the said party of the second part and to his heirs and assigns forever :</p> <p>(Here follows the description of the land mortgaged.)</p> <p>“ To have and to hold the above-granted premises unto the said party of the second part, his heirs and assigns forever.</p> <p>“Provided always that, whereas the said party of the second part has signed as one surety a bond or recognizance in the penal sum of ten thousand dollars, that Thomas O’Brien shall appear to answer the charge against him in whatever court it may he prosecuted, and shall at all times render himself amenable to the orders and process of the court, and, if convicted, shall appear for judgment and render himself in execution thereof, and which bond or recognizance was entered into this day before Hon. Jacob H. Clute, Albany county judge. How, therefore, if there shall be no "default in the said bond or recognizance so signed by the party of the second part, and as is provided by a bond of even date herewith signed by the party of the first part, then these presents and the estate hereby created shall cease, determine and be void.</p> <p>“ And the said party of the first part covenants with the party of the second part as follows :</p> <p>“ That if default be made in the above-named conditions, or any of them, the party of the second part shall have power to sell the premises therein described according to law.”</p> <p>The mortgage was given in connection with a bond dated at the same time, and upon condition that it should be void under the same circumstances as are stated in the mortgage.</p> <p>It appeared on the trial that on the 2nd of Hovember, 1891, a term of the Court of Sessions was held in the county of Albany, at which Thomas O’Brien was bound to appear under the conditions of the bail bond above mentioned, and that he then failed to appear or to hold himself amenable to the orders or process of the court. Thereupon the recognizance entered into by him and by the plaintiff as his bail was duly forfeited. The trial court found that by reason of the failure of O’Brien to appear according to the condition of the bond there was a breach of the condition contained in the mortgage herein and of the bond accompanying the same, and that the sum of $10,000 secured by such bond and mortgage thereupon became due and payable to the plaintiff by the defendant. There was no proof upon the trial that the plaintiff had ever paid any money by reason of the bail bond which he had signed, but the court held that such proof was unnecessary; that by the terms of the mortgage it became due upon proof of the failure of O’Brien to appear in accordance with the bail bond, and that the measure of damages was the amount mentioned in the bond and mortgage, for which sum judgment of foreclosure was ordered.</p> <p>The General Term upon appeal reversed the judgment in favor of the plaintiff and granted a new trial upon the ground that the bond was simply a bond of indemnity against the payment by the plaintiff of the amount of the bond which he had signed for the appearance of O’Brien or such part thereof as he was compelled to pay. The plaintiff has appealed from such order and given the. usual stipulation for judgment absolute in case of affirmance.</p> <p>Further facts.are stated in the opinion.</p> <p>The bond in suit is a positive covenant on the part of the defendant Nelson for the performance of a specific act and is not one of indemnity, and on a breach of this covenant the amount secured by the bond became due and can be recovered without payment being first made. (Rector, etc., v. Higgins, 48 N. Y. 533; Belloni v. Freeborn, 63 id. 384; Kohler v. Matlage, 72 id. 259; Bank of Newburgh v. Bigler, 83 id. 61; Conner v. Reeves, 103 id. 529; Wells v. Miller, 66 id. 255; Harrison v. Sawtell, 10 Johns. 242; Barry v. Ransom, 12 N. Y. 462.) The bond Es not void by public policy. (Simpson v. Roberts, 35 Ga. 180; U. S. v. Ryder, 110 U. S. 729; Holmes v. Knight, 10 N. H. 175; Anderson v. Spence, 72 Ind. 315; Keesling v. Frazier, 119 id. 185; People v. Ingersoll, 14 Abb. Pr. [N. S.] 23; Code Crim. Pro. §§ 586, 589.)</p> <p>The contract to indemnify the plaintiff was a contract against public policy. (2 Pars. on Cont. 746; Oscanion v. Arms Co., 103 U. S. 261, 267; U. S. v. Simmons, 47 Fed. Rep. 575; Goodrich v. Houghton, 134 N. Y. 115; Herman v. Jeuschnes, L. R. [15 Q. B. Div.] 561; Jones v. Orchard, 16 C. B. 614; U. S. v. Luder, 110 U. S. 735.) There was no consideration for the co rgation. (3 Pom. Eq. Juris. § 1202; Minturn v. Seymour, 4 Johns. Ch. 497; Burling v. King, 66 Barb. 633; 1 Story’s Eq. Juris. § 6.)</p>

This action was brought to obtain equitable relief by way of a perpetual injunction against the defendants; restraining them from the commission of certain acts complained of as being illegal and injurious.

<p>Where a policy of Are insurance, insuring a stock of goods, contained a provision declaring it void in case of a sale, transfer or change in title to or possession of the property, and the insured during the life of the policy took in a co-partner, transferring to him an interest in the insured property, held, that this transfer rendered the policy void.</p>

<p>Appeal from judgment' of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 26, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>On the undisputed evidence it was not the duty of the defendant at the time of the destruction of the property to send it forward without further act or intervention on behalf of the owners. (Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460; Judson v. W. R. R. Co., 4 Allen, 520; Wilson v. R. R. Co., 82 Ga. 386; Angell on Carriers, § 129; Grosvenor v. N. Y. C. & H. R. R. R. Co., 39 N. Y. 34; O'Neill v. N. Y. C. & H. R. R. R. Co., 60 id. 138; Baron v. Eldridge, 100 Mass. 455; Watts v. B. & L. R. R. Co., 106 id. 467; Nichols v. Smith, 115 id. 332; S. L. & I. M. R. R. Co. v. Knight, 122 U. S. 79; M. P. R. Co. v. McFadden, 154 U. S. 155.) On the undisputed evidence the property was delivered on the defendant’s premises, under an executory contract for its transportation, and a recovery for a breach thereof can be had only in an action where the complaint alleges and the proofs show a performance, or a tender of full performance by the shippers of any further act required of them to complete the contract, or that they were prevented from so performing by the fault or omission of the defendant. (Dunham v. Dimon, 8 N. Y. 508; Pope v. T. II. C. M. Co., 107 id. 61.)</p> <p>An insurer, who has been compelled to pay a loss by fire caused under such circumstances as to render the railroad company liable to the insured, may take an assignment of the whole claim for damages from the insured, exceeding the amount paid by the insurer, and recover the full amount thereof from the railroad company. (Code Civ. Pro. §§ 1909, 1910; H. F. M. Ins. Co. v. M. & S. P. R. R. Co., 28 N. W. Rep. 64; 66 Wis. 58; Fried v. N. Y. C. R. R. Co., 25 How. Pr. 285; C. F. Ins. Co. v. E. R. R. Co., 73 N. Y. 402; Hall v. R. R. Co., 13 Wall. 367.) The defendant is a common carrier, and as such is responsible for the loss of all freight intrusted to it, irrespective of any question of negligence or fault on its part, unless the loss occurs by the act of God or the public enemy. (Merritt v. Earl, 29 N. Y. 115; Read v. Spaulding, 20 id. 630; Miller v. S. N. Co., 10 id. 431.) The liability of a common carrier attaches when the property is deposited with him for transportation ; and where a party, who is both a common carrier and a warehouseman receives goods into his warehouse to be transported by him, his responsibility as a common carrier commences when they are received. (Blossom v. Griffin, 13 N. Y. 569; Ladue v. Griffith, 25 id. 364; Coyle v. W. R. R. Co., 47 Barb. 152; Rogers v. Wheeler, 6 Lans. 420; 52 N. Y. 262; Wade v. Wheeler, 3 Lans. 201; 47 N. Y. 658; Edw. on Bail. § 528; Hutch, on Carriers, § 89.) Where liability as a common carrier has once attached it continues until the goods are actually delivered, or until the consignee has received notice of the arrival of the goods and neglects, for a reasonable time, to receive them. (Gould v. Chapin, 20 N. Y. 259; McDonald v. W. R. R. Co., 34 id. 497; McKinney v. Jewett, 90 id. 267.) Where goods are delivered to a common carrier who has a freight house in which he receives goods for the purpose of shipment over his road, the presumption is that he receives such goods for that purpose, unless it is shown that they are there simply for the purpose of storage. (Ladue v. Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 id. 569; Coyle v. Western R. R. Co., 47 Barb. 152; A. Ins. Co. v. Wheeler, 5 Lans. 485; Converse v. N. & N. Y. T. Co., 33 Conn. 177.) The delivery of the property to the defendant in this case was complete. It was deposited in the defendant’s freight house for transportation, in the place pointed out by the defendant’s agents for that purpose, and nothing whatever remained to be done by the shippers. (Coyle v. W. R. R. Co., 47 Barb. 152; Rogers v. L. I. R. R. Co., 2 Lans. 269; A. Ins. Co. v. Wheeler, 5 id. 480, 485; 49 N. Y. 616; Merriam v. H. & N. H. R. R. Co., 20 Conn. 354, 360; Converse v. N. & N. Y. T. Co., 33 id. 166, 181; 2 Rorer on Railroads, 1280, 1281; Nichols v. Smith, 115 Mass. 332; R. Co. v. Trawick, 15 S. W. Rep. 568; Meyer v. V. S. & R. R. Co., 41 La. Ann. 630; I. C. R. R. Co. v. Tronstine, 64 Miss. 834; Hutch. on Carriers, §§ 89, 99, 99a, 100.) Where there is no special contract as to the liability of a common carrier of property, he is responsible for all loss or damage, except that which is caused by the act of God or the public enemy. This liability may be limited by an express agreement, but it cannot be limited by notice, even though it be brought to the knowledge of the owner. (Dorr v. N. J. S. N. Co., 11 N. Y. 485; Park v. Preston, 108 id. 434; Pearsall v. W. U. Tel. Co., 124 id. 256. 268; Madan v. Sherard, 73 id. 329; Blossom v. Dodd, 43 id. 264; Perkins v. N. Y. C. R. R. Co., 24 id. 201; Reed v. Fargo, 7 N. Y. Supp. 185; 26 N. Y. S. R. 587; Edw. on Bail. §§ 554, 569; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 id. 251; Clark v. Faxton, 21 id. 153; C. & A. R. R. Co. v. Belknap, Id. 354.) Where a common car' rier, by a special contract, has limited its liability so as to exempt it from liability from loss by fire, the carrier is not relieved when the fire results from its own negligence, or when the loss occurred by the delay of the carrier in transporting or delivering the goods. (Read v. Spaulding, 30 N. Y. 630; Michaels v. N. Y. C. R. R. Co., 30 id. 564; Condict v. G. T. R. R. Co., 54 id. 500; Rawson v. Holland, 59 id. 611, 619.) It was the duty of the defendant as a common carrier to equip its road with the requisite rolling stock, engines and cars, to satisfy the ordinary demands of its business, and to send forward property received for transportation without delay. It was bound to procure and employ all the requisite facilities, to make diligent use of such facilities and means in carrying forward goods delivered to it for transportation, and failing to do so, it is liable for all damages sustained through such delay. (Edw. on Bail. § 602; 2 R. S. [7th ed.] 1567, § 36; Read v. Spaulding, 30 N. Y. 630; Michaels v. N. Y. C. R. R. Co., Id. 564; Condict v. G. T. R. R. Co., 54 id. 500; Tierney v. N. Y. C. & H. R. R. R. Co., 76 id. 305; Zinn v. N. J. S. Co., 49 id. 444.) Rule No. 7, in fine print upon the back of the shipping order and receipt, to the effect that the. company would not be liable in certain cases, would not relieve it from a loss occasioned by fire, even had the shipping bill been signed by the shipper and the receipt given to him by the railroad company. (Jennings v. G. T. R. R. Co., 127 N. Y. 450; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id. 425; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id. 370; Holsapple v. R., W. & O. R. R. Co., 86 id. 275.) There were no errors committed upon the trial of this action, and none of the exceptions upon the part of the defendant were well taken. (Campbell v. Birch, 60 N. Y. 214; Jones v. B. F. Ins. Co., 61 id. 79; Hine v. Bowe, 114 id. 350.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made June 23, 1893, which affirmed a judgment in favor of defendant entered upon the report of a referee.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>By the exchange of letters and telegrams between the parties their minds met and a valid contract was entered into. (Vassar v. Camp, 11 N. Y. 441; Brown v. Norton, 50 Hun, 248.) The fact that the contract by correspondence was to be followed by a formal writing does not, in any manner, impair its obligations. (Pratt v. H. R. R. R. Co., 21 N. Y. 308.)</p> <p>There was no contract consummated between the parties. (49 N. Y. 659; T. Co. v. Smith, 47 Hun, 474; Fulerton v. Dalton, 58 Barb. 236; Kerwan v. Byrne, 29 N. Y. S. R. 287; Templeton v. Wile, 22 id. 251; Brown v. Norton, 50 Hun, 248.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made December 6, 1893, which reversed an order of Special Term denying a motion to strike out an amended or supplemental complaint and granted said motion.</p> <p>A- stipulation was entered into between the parties to this action by the terms of which plaintiff was authorized to serve .an amended or supplemental complaint or either and defendant was given thirty days within which to demur or answer.</p> <p>This motion was made on the ground that the so-called amended complaint served was not an amended complaint, but an abandonment of the original cause of action and the substitution of a new one.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The learned judge at the •General Term gives as his reason for striking out the amended •complaint, that it was not in fact an amended complaint, but an abandonment of the original cause of action and the substitution- of a new one. This was error. (Brown v. Leigh, 49 N. Y. 78; Hope v. N. Y. S. B. Co., 48 N. Y. S. R. 729.) The learned judge, in the opinion at General Term, refers to a stipulation of the attorneys that plaintiff might serve a supplemental and amended complaint, or either, as the •only authority for the plaintiff to serve an amended complaint, . entirely overlooking and ignoring the order of the •court. (12 Abb. Fr. 105.) The statute requires the action to be brought against all of the devisees jointly and that judgment be rendered against each separately. (Code Civ. Pro. §§ 1839, 1846.) Ro possible harm can come to these defend•ants if this amended complaint shall stand. (Code Civ. Pro. § 720; Lapham v. Rice, 55 N. Y. 472.)</p> <p>The order appealed from is not appealable to this court. (Code Civ. Pro. § 190, subd. 2; F., etc., Co. v. B., etc., Co., 109 N. Y. 342; Quimby v. Claflin, 77 id. 270; Holyoke v. Adams, 59 id. 233; Goldberg v. Utley, 60 id. 427.) It can hardly be questioned that, the new complaint sets up an entirely new cause of action, •distinct from.and affecting different parties from the cause of .-action set forth in the original complaint. (Code Civ. Pro. §§ 1848, 1851; Clift v. Moses, 116 N. Y. 158; Parsons v. Bowne, 7 Paige, 354; Rowell v. Janvrin, 69 Hun, 305.) The proposed amendment was not authorized by the stipulation of February thirteenth. (Van Wormer v. Van Wormer, 57 Hun, 496; Van Aernam v. Bleistein, 102 N. Y. 359; Becker v. Larmont, 13 How. Pr. 23; Holly v. Grof, 29 Hun, 443; Tiffany v. Boerman, 2 id. 643; Rowell v. Janvrin, 69 id. 305; N. S. S. Co. v. Sheehan, 122 N. Y. 466; G. Co. v. R., W. & O. R. R. Co., 5 N. Y. Supp. 659; Barnes v. Quigley, 59 N. Y. 265; Code Civ. Pro. § 1846.) The motion should have been granted, as the proposed amended complaint sets, forth two distinct causes of action which can be legally united. (Code Civ. Pro. §§ 484, 1845; Hawyard v. McDonald, 7 N. Y. Civ. Pro. Rep. 101; Greene v. Martin, 27 Hun, 246.)</p>

In January, 1883, the Saranac Horse Nail Company owed a large amount of debts, and its board of directors duly resolved to issue coupon bonds of the company to the amount of $30,000, of the… Held: by them with interest from the proceeds of the foreclosure sale, before any part of such proceeds are applied in payment of the bonds held by the appellants.

<p>The provision of the charter of the city of Buffalo, as revised in 1891 (§ 504, chap. 105, Laws of 1891), which provides that in contracting for any work by the city a clause shall be inserted in the contract binding the contractor not to discriminate in the performance of the work against members of labor organizations, or to accept any more than eight hours as a day’s work, is not penal in its character, but simply directory as to certain provisions to be inserted in the contract.</p> <p>A contract for certain city work was entered into between it and a corporation. The contract contained the clause required by the charter. The superintendent of the company in carrying out the contract employed men at agreed wages for a day’s work of ten hours. Said superintendent was convicted in the Police Court of said city of a misdemeanor in violating said provision. Held, that the arrest, trial and conviction were . without jurisdiction and void; that the clause did not in any way apply to the superintendent; also, that the clause could not he the basis for the criminal indictment of any person for a misdemeanor.</p>

<p>Appeal from order of the General Term of the Supreme-Court in the fifth judicial department, made October 17,1894, which affirmed an order of the County Court of Erie county, the nature of which, and the facts, so far as material, are set.forth in the opinion.</p> <p>In the absence of a statute expressly authorizing the same, even the Supreme Court would have no power by motion to make the order granted in this proceeding. (Heywood v. City of Buffalo, 14 N. Y. 534; W. R. R. Co. v. Nolan, 48 id. 519; M. B. L. Ins. Co. v. Bd. of Suprs., 3 Keyes, 182; D. & H. C. Co. v. Atkins, 121 N. Y. 249; Thomas v. M. P. Union, Id. 52; People v. W. S. Bank, 39 Hun, 528.) But the County Court is one of special and limited jurisdiction. (Frees v. Ford, 6 N. Y. 176; Avery v. Willis, 24 Hun, 548; Kundolf v. Thalmier, 12 N. Y. 593; Buckhout v. Rail, 28 Hun, 484; Williams v. Corey, 46 id. 408; Parr v. Parr, 121 N. Y. 678; Thomas v. Harmon, 122 id. 88; Gilbert v. York, 111 id. 548.) The County Court had no power to make the order herein. (In re D. & H. C. Co., 129 N. Y. 112; In re Miller, 110 id. 222; Engle v. Fisher, 102 id. 403.) In any event it is not to be inferred, in the absence of express direction to that effect, that the legislature intended to confer upon a County Court the equitable power, by order, to compel the cancellation of a tax after the roll has left the hands of the supervisors; a power which the Supreme Court has never possessed. (People v. Queens Co., 82 N. Y. 277; De Hart v. Hatch, 3 Hun, 381; Gracie v. Freeland, 1 N. Y. 232; Wheaton v. Gates, 18 id. 406; Alexander v. Bennett, 60 id. 204.) If the tax was illegal, null and void, the petitioner could have paid the same and then have compelled the refunding of it under the statute of 1892, or by an action against the individual supervisors of the board and the county treasurer it could in that way have obtained complete redress. (D. & H. C. Co. v. Atkins, 121 N. Y. 250; People v. Queens Co., 82 id. 277.) What is claimed here by the appellant is that the 'power given to the County Court to compel the refunding of a tax does not include the alleged incidental power to cancel a tax before collection or payment. There is no necessary connection whatever between the two things, and the latter power cannot be inferred from the former. (Gregory v. Mayor, etc., 113 N. Y. 416; City of Rochester v. Campbell, 123 id. 414.) An examination of the statute of 1892 will disclose the fact that it is not clear, by any means, that the board of supervisors had any power to make the separation of the local from the state tax, or strike the same from the roll. (People v. Tompkins, 40 Hun, 232; Mygatt v. Washburn, 15 N. Y. 321.)</p> <p>The County Court had authority to make the order appealed from. (Laws of 1892, chap. 686, § 16; 77 N. Y. 342; 78 id. 561; People v. Bd. Suprs., 82 id. 275; People v. Bd. Suprs., 34 Hun, 266; 38 id. 7; 40 id. 228; D. & H. C. Co. v. Atkins, 48 id. 456; 121 N. Y. 246; M. B. L. A. Co. v. Suprs., 3 Abb. Ct. App. Dec. 344; In re Douglass, 48 Hun, 318.)</p>

Special Term denying an application for a writ of mandamus against the comptroller of the state.

<p>Where the complaint in a foreclosure action alleged the existence of a prior mortgage, and in the prayer for relief it was asked that the amount due thereon be ascertained and first paid out of the proceeds of sale, and the owner of the prior mortgage was made a party and suffered default, and the judgment followed the prayer for relief, held, that such prior incumbrancer was concluded by the judgment; and so, that it was a bar to the maintenance of an action to foreclose his mortgage.</p> <p>It seems, that while a prior incumbrancer is not a necessary or proper party in an action to foreclose a mortgage, yet, if made a party, the court has jurisdiction, and may grant the relief demanded in the complaint in case he makes default; that if he does not desire to have his rights adjudicated he should appear, and by answer or demurrer raise the question that he is improperly made a party.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The admission of proof of defendant’s ownership of the corner lots was a fatal error. (Clark v. Dillon, 97 N. Y. 370; Romeyn v. Sickels, 108 id. 650.) No opportunity is afforded the defendant by the statute to be heard on the amount it shall pay; the assessment is, therefore, invalid.

The defendants constituted the state board of canvassers, whose duty it was to canvass the returns from the various counties of the state of the votes cast therein at the election held in 1891. A dispute arose in Dutchess county over the election of senator for the fifteenth senatorial district.

<p>Where, for lands taken under the act providing for the widening and improvement of North Second street, in the city of Brooklyn (Chap. 559, Laws of 1871), an award was made to one who was the owner of the land at the time the act was passed, but who, before the award was made, had sold and conveyed the lot, of which the land taken formed a part, by full covenant deed, purporting to grant “all the estate, right, title and interest, property, possession, claim and demand ” of the grantor, and no attempt was made by the city to take possession until eighteen years after the passage of the act, when, through various mesne conveyances, all substantially similar, plaintiff had become and was the owner, held', that in equity the award represented the portion of the lot taken, and was transferred by the deeds; and so, that plaintiff was entitled thereto.</p> <p>So, also, where a lot, a portion of which was taken under the act, was, at the time of its passage, covered by a mortgage then duly recorded, and before any award was made the mortgage was foreclosed and the yhole lot sold, held, that the purchaser who held the title at the time the land taken was actually appropriated was entitled to the award.</p>

On July 13th, 1891, Hevenor made a general assignment for the benefit of his creditors. The deed, of assignment contained the provision, that, after the payment of the expenses of executing the assignment and of certain debts, the assignee should apply the residue of the estate to the payment of all the debts and liabilities of the assignor, then due or to grow due.

<p>While, where upon the final accounting of an executor he claims an overpayment to a legatee, the fact and the extent of the over-payment may be a material inquiry in ascertaining the amount of the distributive shares, and so the decision of the surrogate may be binding upon the legatee if made a party to the accounting, the surrogate has no jurisdiction to compel the legatee to restore the amount of the over-payment, but, it seems, the executor must resort to his action to recover it.</p> <p>‘The will of S. named L. as executor and H. as executrix; the latter was also residuary legatee. • L. had the exclusive management of the estate and possession of its assets. The personalty consisted principally of money in savings banks. The bank books were delivered by L. to H. as such legatee. Upon final settlement of the accounts of L., in which accounts he stated in substance that the bank books were so delivered in payment of the legacy to H., he presented a claim against the estate for moneys paid and for services rendered to the testatrix during her lifetime; a portion of the claim was allowed by the surrogate, also an allowance was made for the expenses of the accounting and for the commissions of L. as executor. These the surrogate directed to be paid out of any assets remaining in the hands of L. as executor, and which might thereafter be received by him. It appeared that there were no assets remaining in the hands of L. as executor. Held, that the surrogate properly decided that he had no power to compel H. to pay over to L. any part of the sums received by her for the purpose of satisfying his claims; that the latter could not be heard to claim that the fund was not paid to his co-executor, in her character as legatee, contrary to the averments in his petition.</p>

This action was brought to recover damages for injuries received by plaintiff through falling down the cellar steps, which were covered by wooden doors and led from the sidewalk to the basement of premises situated on Third avenue, in the city of Hew York. The lessees and occupants and owners of the property were made parties defendant. The facts, so far as material, are stated in the opinion. The cellarway, of whatever dimensions, was a nuisance.

Appeals from order of the General Term of the Supreme Court in the fourth judicial department, made February 7, 1893, which reversed a judgment in favor of defendants, entered upon an order dismissing the complaint on trial at Special Term and granted a new trial.

. Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made July 2, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court, and also affirmed an order denying a motion for a new trial. The plaintiff sued to recover the price of 8,310 boxes of dates.; which were sold at public auction, on Hovemher 4th, 1892, and of which the defendants were alleged to he the-purchasers.

The facts stated are substantially as follows: The defendants are and for the past thirty years and upwards have been husband and wife. On or about the 22d of March, 1866, the defendants, by a deed to them as husband and wife, took title to a farm of about forty-four acres in the town of Dryden, Tompkins county, H. Y., which they have ever since occupied and possessed as their home under said deed with no other title.

Prior to 1859 the state of New York was the owner of a certain parcel-of land in the village of Sing Sing, known as the prison or state farm. In that year the legislature passed am act providing for its sale by tbe inspectors of state prisons. Pursuant to that authority the inspectors made a map of the farm and sold it to one Thomas Nelson and others on the 23d of November, 1859.

The nature of the action is set forth in the opinion.* The complaint contains no cause of action for the execution of a deed. (Code Civ. Pro. § 1207; Simonson v. Blake, 20 How. Pr. 484; People v. Liscomb, 60 N. Y. 559; Bigelow v. Forrest, 9 Wall. 339; Monday v. Vail, 34 N. J. Law, 418; Reynolds v. Stockton, 43 N. J. Eq. 211; Jones v. Davenport, 45 id. 81; Consolidated Elec.

This was' an action for an accounting. The facts, so far as material, are stated in the opinion. The plaintiff cannot maintain an action against the cemetery upon these bonds.

This action was brought to recover the amount paid by plaintiff upon a contract to purchase certain real estate and expenses incurred on the ground that the title tendered was defective. The facts, so far as material, are stated in the opinion. The title is free from reasonable doubt, and there is no one who could claim any part of the property as against the appellant. (Wheeler v. Dunning, 33 Hun, 207; Clements v. Griswold, 46 id. 382; Code Civ.

This was an action upon a sealed instrument in the form of a promissory note. The facts, so far as material, are stated in the opinion. The court erred in instructing the jury as to the burden of proof on the issue of a material alteration. (Davis v. Jenney, 1 Metc. 221; Meikel v. S. S. Inst., 36 Ind. 355; Harris v. Bank of Jacksonville, 22 Fla. 501; U. S. v. Lenn, 1 How.

<p>Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment of the court of special sessions of Monroe county entered upon a verdict convicting defendant of the crime of seduction.</p> <p>The facts, so for as material, are stated in the opinion.</p>

Appeal irom judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made February 17, 1893, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion. The question raised by appellant being whether the damages were assessed, a presentation only of the evidence bearing upon the extent of damages is sufficient, (Code Civ.

<p>A person claiming dower by title paramount to a mortgage upon the real estate cannot be brought into court in an action to foreclose the mortgage, and compelled to test the validity of her dower.</p> <p>The will of N. gave to his wife the use and income of his real estate during life, the same'to be, as stated, “enjoyed, accepted and received by her in lieu of dower, and in addition to what she would have as doweress if this devise was not so made to her.” Held, that the devise was in lieu of dower; and that the devisee having accepted the provision made was not entitled to dower.</p> <p>Certain real estate of which N. died seized was subject to a mortgage executed by him, but in which his wife did not join. An action was brought after the death of IT. to foreclose the mortgage; his widow was made a defendant and was served with summons and complaint, but did not appear. The complaint contained no allegation in reference to her dower right, except the general averment that defendants “have, or claim to have, some interest in or lien upon said mortgaged premises ” accruing “ subsequently to the lien of said mortgage.” The judgment provided that the premises be sold “ subject to the dower therein of the defendant,” Mrs. IT. The premises were purchased by the plaintiff in that action. In an action brought by Mrs. IT. to recover dower in said real estate, held, that the proceedings in the foreclosure suit were ineffectual to determine the question as to plaintiff’s right to dower; and that defendant, who was the grantee of the purchaser at the sale, was not estopped by the judgment therein, or by the purchase under it, from % questioning that right.</p> <p>The record of a judgment, in order to conclude either of the party litigants, must be conclusive upon both.</p>

' This was an action upon a promissory note. The facts, so far as material, are stated in the opinion. The motions for dismissal of the complaint were properly denied and the questions of fact were properly submitted hy the trial justice to the jury. (1 Pars. on Cont. 245, 440; King v. Upton, 8 Greenl. 387; Elting v. Vanderling, 4 Johns. 237; Muirhead v. Kirkpatrick, 21 Penn.

The facts, so far as material, are stated in the opinion. The general scheme of the act of 1868 was unconstitutional ; the right to dyke was, therefore, destroyed, and, hence, the grant of land under water fell with the rest of the act and was void for uncertainty.

The nature of the claim and the facts, so far as material, ■are stated in the opinion. Claimant was entitled to not less than two dollars a day or twenty-five cents an hour for his services. (Laws of 1870, chap. 385.) Chapter 380 of the Laws of 1889 is not limited to the compensation of employees upon the public works.

The nature of the action and the facts, so far as material, are stated in the opinion. The order appointing a receiver of the plaintiffs property in proceedings supplementary to execution vested the title of plaintiff to the prop-, erty in question in the receiver, and the court erred in refusing to dismiss the complaint on this ground. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The only reasonable construction of the deed consistent with the language used is that the west line of Union street is the east line of plaintiff’s lands, and that plaintiff’s lands run west 125 feet from the west line of Union street. (Rathgaber v. Village of Tonawanda, 37 N. Y. S. R. 807; Dillon on Mun.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is entitled to specific performance hy the defendants of their agreement to give Rickins, for each of his 1,000 shares of common stock of the old company, one share of common stock of the re-organization company on payment of fifteen dollars upon each such share.

A mem. of the case on a former appeal appears in 120 NT. Y. 658. This action was brought upon an alleged agreement made by defendants for a valuable consideration to pay to plaintiff the amount of an indebtedness of the firm of Charles Spruce & Co. to it. On October 30, 1882, said firm, being financially embarrassed, confessed judgment to defendants for various sums due them and for amounts owing to other parties.

<p>By the act of 1891 (Chap. 180, Laws of 1891), establishing a board of public works in the city of Watertown, all the powers conferred upon the common council by the city charter (Chap. 714, Laws of 1869, as amended by chap. 163, Laws of 1886), in relation to the opening of new streets, were transferred to and conferred upon that board.</p> <p>Accordingly hel&f that proceedings for the opening of a new street were properly instituted by said board instead of by the common council as provided hy the charter; and that an order of court confirming the report of commissioners appointed in such proceedings was as prescribed by the charter (§ 7, tit. 7) final and conclusive, and shut out all objections save those involving the question of jurisdiction.</p>

This action was brought to require defendant to remove obstructions in the operation of plaintiff’s road, and to enjoin it from interfering with plaintiff’s road, cars, trolley and wires at a certain crossing on defendant’s road, by erecting or maintaining a gate there or otherwise. The facts, so far as material, are stated in the opinion. Plaintiff’s cars have, rights on the highway; defendant’s gate has only a privilege there.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 8, 1893, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial at Special Term.</p> <p>- This was an action upon a bond executed by the defendant Herbert J. Woodworth, on his appointment to the office of deputy sheriff, as principal, and by the other defendants as sureties, to plaintiff, who was the sheriff of Saratoga county.</p> <p>The facts and provisions of said bond, so far as material, are stated in the opinion.</p> <p>The bond is a valid instrument in all its parts. The provision as to payment by the deputy of one-third of the criminal fees is valid, and, having proven its breach, the plaintiff was entitled to recover. (Reilly v. Dodge, 131 N. Y. 153; Mott v. Robbins, 1 Hill, 21; Willet v. Kip, 12 Hun, 474; Smith’s Sheriffs, 22, 23, 25, 26; Crocker on Sheriffs, § 782; Code Civ. Pro. § 3312; Becker v. Ten Eyck, 6 Paige, 68.)</p> <p>The trial court and Gen- ■ eral Term were clearly right in reaching the conclusion that that portion of the bond which related to the surrender of one-third of the fees earned by the defendant Woodworth in criminal cases, and that portion which related to his performance of criminal cases as deputy sheriff, and not as a constable, was void as against public policy. (Code Crim. Pro. §§ 151, 154; Becker v. Ten Eyck, 6 Paige, 68; Farrar v. Barton, 5 Mass. 395; Mott v. Robbins, 1 Hill, 21; Schloss v. Herslett, 81 Ala. 266; Penal Code, §§ 52, 53; Bliss v. Laurence, 58 N. Y. 422; Thurston v. Fairman, 9 Hun, 584.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order nrade May 8, 1893, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granted a new trial.</p> <p>This action was brought to obtain an injunction restraining the defendant from using a roadway leading from the Pelham road, in the town of New Rochelle, Westchester county, to a dock on Neptune House island, and a ferry connecting the mainland with Glen island, or to restrict and confine defendant’s use thereof to the manner in which defendant’s grantors had used them.</p> <p>A stone causeway and road was built over the water separating Neptune House island from the mainland. In 1833 the island was conveyed by William Turpin to Catharine Wyman, who owned the adjacent mainland. Through her will and a deed by her executors it passed to Jacob ¡Rhinelander in 1836, the deed conveying also said road and causeway. In 1837 the island passed, under the will of ¡Rhinelander, to various devisees, who, in 1850, conveyed the island with the road and causeway to Philip Underhill, and conveyed the mainland to other parties. Plaintiff claimed title under various mesne conveyances, each one of which assumed to convey the island, the road and causeway.</p> <p>In 1845 the then owners of ¡Neptune island filed their petition with the commissioners of the land office, praying for a grant of land under water, for the purpose of enabling them to extend a steamboat dock then on the island, and asking to establish a dock thereon, with leave to collect wharfage, etc. They therein state that the dock was built “ for the convenience of navigation and for the accommodation of steamboats and other craft passing into the bay.” That Rhinelander believed when he took title that title had been obtained to the land under water where the dock stood, but that it was subsequently discovered that such was a mistake. It also states that this dock or landing is “ a great public convenience, and necessary for the purposes of commerce, and will greatly increase those objects by extending the dock a little farther into the bay, as designated ” on a map filed. This map shows the road in question. The petition also states that the contemplated extension of the dock “ will be of great public convenience, in a commercial point of view,” and the object of the acquirement of the land was to increase that public convenience by extending it to deeper water, so that larger vessels may moor thereat; also, “ that to render a landing place' convenient at the place now spoken of, and that the public and others may pass from the mainland either on foot or in carriages * * * to the contemplated dock,” it will be necessary to build an abutment or bridge from the mainland. A patent was granted on this petition. The patent recites that it is for the purpose of promoting the commerce of the state, and the grant was made subject to reservations and conditions expressed, one of which was that if the patentees should not, “ within three years from its date, actually appropriate and apply the above-described premises to the purposes of a dock or docks thereon,” the grant shall be void.</p> <p>Further facts appear in the opinion.</p> <p>Upon this appeal it must be presumed that the reversal by the General Term was upon questions of law only. (Platt v. Platt, 58 N. Y. 646; Van Tassell v. Wood, 76 id. 614; Weyer v. Beach, 79 id. 409, 411; Reitz v. Reitz, 80 id. 541; Van Wyck v. Watters, 81 id. 352; Goodwin v. Conklin, 85 id. 21; Ward v. Craig, 87 id. 550; Davis v. Leopold, Id. 620; R. R. Co. v. Roach, 97 id. 378; Kane v. Cortesy, 100 id. 132; Nicholls v. Wentworth, Id. 455; Everson v. City of Syracuse, Id. 584; Downing v. Kelly, 48 id. 433; Kirkland v. Leary, 50 id. 679; Sheldon v. Sheldon, 51 id. 354; Wallace v. Drew, 54 id. 678; Shaw v. L. E. R. R. Co., 20 Wkly. Dig. 136; Snebley v. Connor, 78 N. Y. 218; Lewis v. Barton, 106 id. 70; Inglehart v. T. I. H. Co., 109 id. 454.) The General Term erred in awarding judgment absolute against the plaintiff. (Thomas v. N. Y. L. Ins. Co., 99 N. Y. 250; Ehrichs v. De Mille, 75 id. 370.) Most of the exceptions taken by the defendant were unavailing to raise any questions for review on the appeal to the General Term. (Code Civ. Pro. § 992; Newell v. Doty, 33 N. Y. 81-93; Wheeler v. Billings, 38 id. 263, 265; Ward v. Craig, 87 id. 550, 557.) The conclusions of law of the trial court were justified by the facts found. (White v. Spencer, 14 N. Y. 247; Driscoll v. N. & R. Co., 37 id. 637; Flora v. Carbean, 38 id. 111; Burbank v. Fay, 65 id. 57; Wiseman v. Lucksinger, 84 id. 31; Cronkhite v. Cronkhite, 94 id. 323; Duryee v. Mayor, etc., 96 id. 477; Fargis v. Walton, 107 id. 398; A. O. Co. v. B. O. Co., 21 Hun, 32; 86 N. Y. 638; Shepherd v. M. O. Co., 38 Hun, 37.) All of the findings of fact to which exception was taken were sustained by the evidence. (Halpin v. P. Ins. Co., 118 N. Y. 165.) The road in question from Pelham road to the dock on Moses or FTeptune island used by the defendant is not a public highway, but is and has been since its creation a private way, and is now the property of the plaintiff. (Speir v. Town of New Utrecht, 49 Hun, 295; 121 N. Y. 420; White v. Spencer, 14 id. 247; Flora v. Carbean, 38 id. 111; Burbank v. Fay, 65 id. 65; Trustees, etc., v. Kirk, 68 id. 465; Wiseman v. Lucksinger, 84 id. 31; Woodruff v. Paddock, 130 id. 624; Oswego v. O. C. Co., 6 id. 257; Holdane v. Trustees, etc., 21 id. 474; Cook v. Harris, 61 id. 448; N. F. S. B. Co. v. Bachman, 66 id. 261; Vandemark v. Porter, 40 Hun, 397; City of Cohoes v. Morrison, 42 id. 216; In re Dept. of Pub. Works, 48 id. 488; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; Flack v. Village of Green Island, 122 id. 107.) The present use by defendant of the road from Pelham road to his dock, and of the dock itself, are entirely unwarranted and unauthorized. (White v. Spencer, 14 N. Y. 247; Driscoll v. N. & R. Co., 37 id. 637; Flora v. Carbean, 38 id. 111; Burbank v. Fay, 65 id. 57; Wiseman v. Lucksinger, 84 id. 31; Cronkhite v. Cronkhite, 94 id. 323; Duryee v. Mayor, etc., 96 id. 477; Fargis v. Walton, 107 id. 398; A. O. Co. v. B. O. Co., 21 Hun, 32; 86 N. Y. 638; Shepherd v. M. O. Co., 38 Hun, 37; Brunston v. Hall, 1 G. & D. 207; Cowling v. Higginson, 4 M. & W. 245.)</p> <p>The powers of the court in equity at General Term, and the rendering of an affirmative judgment for the respondent, were properly exercised and were justified by the evidence, the exhibits and the testimony. (Code Civ. Pro. § 1317; Bennett v. Lake, 47 N. Y. 95; Purchase v. Mattison. 25 id. 211.) The adjudication of the General Term, “that from the time of the construction of the landing place on Hoses island by Louis de Pau in the year 1852 or 1853, the owners of Glen island. (formerly Locust island) have had and enjoyed a vested and absolute right of way over the road leading from the Pelham road to the appellant’s landing place and dock, and that such user was under a claim of right and color of title which could he conveyed, was justified by the evidence. (2 R. S. art. 4, § 147.) The respondent and his grantors have been in possession and use of the premises for over twenty years under a claim of title, and this .gives him an absolute title. (Jackson v. Newton, 18 Johns. 355; Ellicott v. Pearl, 10 Pet. 412; Barnes v. Light, 118 N. Y. 34; Green v. Conse, 127 id. 386; Baker v. Oakwood, 123 id. 16; Woodruff v. Paddock, 130 id. 624; Cahill v. Palmer, 45 id. 478; Campbell v. Holt, 115 U. S. 620.) Ye have assumed that the actual fee of the landing place and adjacent roadway has become vested in the respondent by adverse possession. The same reasoning, however, applies to a right of way even if the court should hold that the respondent was not entitled to the actual fee. (3 Kent’s Comm. 421; Langdon v. Mayor, etc., 93 N. Y. 151.) Neither the plaintiff nor his immediate grantors ever had title to the premises in question. (Roberts v. Baumgarten, 110 N. Y. 380; People v. Canal Appraisers, 33 id. 461; 1 R. S. [8th ed.] 633; B. P. L. Co. v. N. Y., L. E. & W. R. Co., 10 Abb. [N. C.] 107; Gerard on Titles [3d ed.], 829.) The appellant cannot maintain an action to restrain respondent in the use and maintenance of his transfer boat between the landing places on Glen island and Neptune island. (People v. Macy, 62 How. Pr. 65; Gould v. N. Y. & H. R. R. Co., 6 N. Y. 522.) The right to grant land between high and low tide, and land under water beyond low tide, is limited to two purposes : -To promote the commerce of this state; for the purpose of beneficial enjoyment of the same by the adjacent owner. (Laws of 1850, chap. 283; Laws of 1835, chap. 232.) When a road is opened and used by the public as a highway for twenty years or more, it becomes a public highway, and in order to stop the running of the statute there must be an actual obstruction so that the public cannot pass. Notice of a claim that the road is private has no effect to stop the statute from running. (R. S. tit. 1, pt. 1, chap. 16, § 100; Laws of 1892, chaps. 163, 568; Davenpeck v. Lambert, 44 Barb. 596.) The express and implied dedication has been accepted in the most pronounced and formal manner. (Vandermark v. Porter, 40 Hun, 397; Glover v. M. R. Co., 19 J. & S. 1; Walker v. Caywood, 31 N. Y. 51; In re Bridge, 100 id. 642; Hunter v. Trustees, 6 Hill, 411; Fowler v. Mott, 19 Barb. 219, 220.) The Statute of Limitations confers a perfect title. (3 Washb. on Real Prop. 143, 163.) The uninterrupted enjoyment of this roadway for'the very long periods shown has given not alone title by prescription, but an absolute grant at the outset will, be conclusively presumed. (3 Kent’s Comm. 421; 2 Washb. on Real Prop. 278.) Appellant has no standing in a court of equity. (R. S. tit. 1, pt. 1, chap. 16, § 100.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The relief asked, for in this action is based upon the principles involved in trade mark cases. (Reeves v. Denix, 12 Abb. Pr. [N. S.] 92; McArdle v. Peck, 28 How. Pr. 120.) The plaintiff is entitled to an injunction herein. (Newby v. O. C. R. R. Co., 1 Deady, 609; A. G. P. Assn. v. G. P. Co., 25 Hun, 398; C. Co. v. C. Co., 32 Fed.

Van Schaick, deceased, giving instructions as to the payment of certain assessments upon lands in the city of Albany. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The comptroller had power to set aside the redemption. (Laws of 1873, chap. 120; Laws of 1893, chap. 711, § 21; People ex rel. v. Chapin, 105 N. Y. 309; Osterhoudt v. Rigney, 98 id. 222; People ex rel. v. Bd. Suprs., 73 id. 173.) The redemption was improperly allowed.

The facts, so far as material, are stated in the opinion. Without reference to the statement in the petition as to what occurred upon the hearing before the commissioners, which the court below said was mere recital, there was enough stated in the petition to give the court jurisdiction.

The nature of the action and the facts, so far as material, are stated in the opinion. The disputed taxes were imposed without jurisdiction, and were void.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made July 30, 1894, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>This action was brought to recover money paid by plaintiff upon what it claims to be a void assessment on its property in the city of Mew York.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>This action will not lie because the defect alleged is not jurisdictional, and concerns only regularity of procedure, affecting only a part of the assessment. (Swift v. City of Poughkeepsie, 37 N. Y. 511; Bank of Commonwealth v. Mayor, etc., 43 id. 184; Marsh v. City of Brooklyn, 59 id. 280; Peyser v. Mayor, etc., 70 id. 497; Wilkes v. Mayor, etc., 79 id. 621; In re Merriam, 84 N. Y. 596.) Mo recovery has been adjudged by the court to recover back money paid for taxes or assessments where the tax or assessment remains unreserved and unmodified, except in those cases where the assessors or municipal authorities had proceeded without jurisdiction of the subject-matter. (Jex v. Mayor, etc., 103 N. Y. 536; Tripler v. Mayor, etc., 125 id. 617; Breucher v. Village of Portchester, 101 id. 240; Horn v. Town of New Lots, 83 id. 100.)</p> <p>An action of this nature will lie. (Jex v. Mayor, etc., 103 N. Y. 536.) The fixing of the price for rock excavation is a violation of the charter, and to that extent the assessment is void. (In re Merriam, 84 N. Y. 596.) These matters were matters dehors the record. Plaintiff being ignorant of the same is entitled to recover. (Tripler v. Mayor, etc., 125 N. Y. 617; 139 id. 1.)</p>

The plaintiff in this action sues as the assignee of certain attorneys for the purpose of recovering the sum of $1,050, with interest thereon from the 17th day of August, 1885.

This action was brought to recover moneys received by defendant on a certificate or policy’ of insurance issued by the Equitable Aid Union upon the life of William H. Eenouard, deceased. The facts, so far as material, are stated in the opinion. It was error to admit and receive in evidence under the defendant’s objection the letter written by Mr. Hall.

The facts, so far as material, are stated in the opinion. The effect of the order vacating the stipulation and order of reference was to discontinue the action, which was beyond the power of the court to do against the protest of plaintiff, who had a vested right to have the action thus begun continued to a conclusion. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s action is barred by the short Statute of Limitations contained in section 1822 of the Code of Civil Procedure. (Code Civ. Pro. §§ 398, 414, 1596, 2628; R. R. Co. v. Chamberlain, 52 How. Pr. 23; In re Comrs., 50 N. Y. 493; In re D. & H. C. Co., 69 id. 209; Hill v. Bd. Suprs., 119 id. 344; In re Lange, 3 How.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff’s right to file a mechanic’s lien did not terminate with the death of Samuel Wright. (Laws of 1885, chap. 342; Cornell v. Barney, 94 N. Y. 394; Laws of 1862, chap. 478; Laws of 1873, chap. 479; Watts v. Yuengling, 125 N. Y. 1; Anderson v. Dillaye, 47 id. 678.) The title of the defendants, having accrued prior to the filing of the mechanic’s lien, is superior thereto.

John G. Collins died in 1858. His estate consisted of personal property, a piece of real estate, Mo. 41 Wooster street, Mew York city, and another piece in Eighty-fourth street. His will was admitted to probate September 20, 1858. It provided that, during her widowhood, his wife should have the net income of his property in Wooster street for the support of herself and their children.

The relator was arrested and convicted for doing business as a master plumber in the city of New York, in violation of the provision of chapter 602 of the Laws of 1892. A writ of habeas corpus was sued out by him and he was brought before the Special Term of the Supreme Court, where, after a hearing, the writ was dismissed and the prisoner remanded to the custody of the defendant.

Merklee, deceased, entered upon a decision of the court on trial at Special Term. The nature of the action and 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 evidence failed to show negligence on the part of the defendant.

Murphy, deceased, of a legacy given by the last will and testament of Edmund A. Smith, deceased. The facts, so far as material, are stated in the opinion. In view of the rights of the after-born child, the executor of the estate of Elsie S. Murphy, one of the deceased children of the said Edmund A. Smith, deceased, and the petitioner on this application, may receive the entire share of said Elsie S. Murphy for purposes of administration.

The facts, so far as material, are stated in the opinion. The administrators legally and properly disposed of the one-eighth interest in the leasehold estate which the intestate owned at the time of his death, and have duly accounted for the same. (3 R. S. [7th ed.] 2294, § 6.) There is no evidence to sustain the finding of fact contained in the referee’s report, that the value of the one-eighth interest in the leasehold sold to James Kenny was $1,500.

McDonald, deceased. The nature of the action and the facts, so far as material, are stated in the opinion. Under the fourth item of the will an equitable conversion of the real property is created, and as the terms of this item are directory, the fee of the property is not vested in the parties to this action subject to the power of sale, so that an election by the latter to take the property would not vest the fee in them or defeat the power of sale.

The nature of the action and the facts, so far as material, are stated in the opinion. The lease was void when made and when this action was brought. (1 R. S. 727, § 44.) Independent of the status of the trustees, the lease is voidable for improvidence, neglect and conduct on the part of the trustees having a strong savor of bad faith.

The nature of the action and the facts, so far as material, are stated in the opinion. The entire provision of the will “ thirdly ” is void, as it contravenes the statute against perpetuities. (Garvey v. McDevitt, 72 N. Y. 556; Hetzell v. Barber, 69 id. 1; Waldron v. Schlang, 47 Hun, 252; Mott v. Ackerman, 92 N. Y. 539.) The devise of the premises FTo. 228 Mott street to testator’s son, Charles Wade, is a devise to him in fee simple.

Appeals from awards of the Board of Claims, made April 13,1894, which dismissed the claims and awarded the claimants above named nothing for damages alleged to have been sustained by them as riparian… Held: and that resolutions set forth below were adopted by it.

• Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 16, 1894, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion. It was an error on the part of the court to allow the plaintiff to amend his complaint, upon the trial, by “ striking out the allegations of the assignment from the husband to the wife, and from the wife to the husband,” of the account in suit. (Code Civ. Pro. §§ 723, 829; Miller v. Moore, 1 E. D. Smith, 743; Jones v. Jones, 1 How.

This was an action of negligence, in which the jury rendered a verdict for the plaintiff for $5,000. The defendant moved for a new trial upon the judge’s minutes, which was denied. The defendant appealed from the order denying a a new trial and from the judgment entered in favor of the plaintiff upon the verdict.

The facts, so far as material, are stated in the opinion. The election was not good before the Ballot Law was passed. (People ex rel. v. Crissey, 91 N. Y. 616.) The relator was not elected under the General Ballot Law. (Laws of 1892, chap. 680; Laws of 1870, chap. 291, § 17.) There is no restriction upon the right to vote, nor is the legislature authorized to impose any. (Const.

<p>The will of S. directed his executors to convert into money all of his estate, and to dispose of the proceeds as thereinafter directed; following this were four specific bequests, and then the will directed the executors to divide “whatsoever moneys may remain * * * after the payment of the foregoing bequests ” between certain beneficiaries named. Two of the specific bequests were invalid. In an action for the construction of the will, held, that the amount of the void bequests went into the residuary estate; and so, the residuary legatees were entitled to the same.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made July 8, 1893, which affirmed a judgment in favor of plaintiffs entered upon the report of a referee.</p>

<p>Motion to amend remittitur.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 29, 1894, which affirmed an interlocutory judgment in favor of plaintiffs entered upon an order of Special Term overruling a demurrer to the complaint.</p>