Volume 145 — New York Reports

<p>Appeal from judgment of the court of general sessions of the peace in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of murder in the first degree. . .</p>

The action was brought by the plaintiff, by virtue of several acts of the legislature giving it power in certain cases to commence an action in its own name, for the purpose of recovering the amount of $200, being the penalty for twenty days violation by the defendant of the act hereinafter mentioned, relative to the supply of water in several tenement houses owned by the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence in the case that Griswold was the agent of either of the defendants, or that he had any authority to represent either of them, except as special guardian of Mary Lamb, appointed by the court to convey her interest in the north house and lot to Mr. Palmer.

This action was brought against the executors of the will of Frederick K. Agate, deceased, to recover a balance unpaid upon a promissory note made by the firm of W. H. Whitaker & Co. The complaint alleged that William H. Whitaker, Sanford W. Battershall, John E. D. Grainger and Frederick K. Agate were the members of said firm; that on or about September 21, 1885, judgment by confession was entered upon said note against the members of said firm except Agate, and an execution…

This action was brought to recover damages for injuries received by plaintiff by reason of the alleged negligence of defendant in failing to guard an excavation made by it in one of its streets. The facts, so far as material, are stated in the opinion. The court erred in refusing to grant the defendant’s motion for a non-suit.

This action was brought by a creditor of the Madison Square Bank, an insolvent banking corporation organized under the banking laws of this state, now in the hands of a receiver, to enforce an alleged liability of the defendants, stockholders in said bank at the time of the appointment of the receiver, to the creditors of the corporation under sec. 52 of the Banking Law, chap. 689 of the Laws of 1892.

Mullon and Jacob H. Mullon, as administrators with the will annexed of John Mullon, deceased, and granted a new trial. This proceeding was instituted by William Bayard Van Rensselaer, as trustee for Laura Van Rensselaer, said trustee claiming that a judgment for deficiency on the foreclosure of a mortgage should be paid to his cestui que trust by the administrators. The facts, so far as material, are stated in the opinion.

<p>Food—Adulter ation.</p> <p>The adding of a foreign and artificial ingredient to a food product, even for the purpose of color merely, is in effect, an adultera^ tion, and the legislature has power to prohibit such act.</p>

Cross-appeals from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 14, 1893, which modified and affirmed as modified a judgment construing the will of Bernardus E. Staats, deceased, entered upon a decision of the court on trial at Special Term. This action was brought for a construction of the will of Bernardus E. Staats, deceased.

The nature of the action and the facts, so far as material, are stated in the opinion. If the decree in Hovey v. McDonald was assailable for the reasons stated by the referee, the remedy of the defendants was by direct review in the Supreme Court of the United States. Having failed to pursue that remedy, they and their privies are now estopped from collateral attack upon the decree.

<p>As a general rule the owner of real estate, from the time of the execution by him of a valid contract for the sale thereof, is to be treated as the owner of the purchase money and the vendee as equitable owner of the land.</p> <p>Provisions in such contract making performance on the part of the vendee of his contract to pay a portion of the purchase money and to secure the balance by mortgage on the premises a condition precedent to a conveyance by the vendor do not take the case out of the general rule.</p> <p>It seems, that after a default in the performance of these conditions precedent the rule may not apply.</p> <p>But prior to a default on the part of the vendee, even where by the contract time is of the essence thereof, there is an equitable conversion within said rule, subject to be reconverted upon the default happening.</p> <p>On March 18, 1886, 0., being the owner of certain premises occupied as a brewery in the city of New York, contracted to sell the same for a, sum specified. A part of this was paid down, a part was agreed to be paid on or before March 18, 1887, and the balance on that date by a bond secured by mortgage on the premises. The vendor agreed, on receipt of the second payment and of the bond and mortgage, which were to be delivered at a place specified at twelve o’clock noon of the day specified, that she would execute and deliver a deed of the premises. It was agreed that the vendees should, at the same time and place, purchase the materials, fixtures, etc., used in the business at a price, and on conditions to be agreed to in writing between the parties; otherwise that the vendor would be at liberty to refuse to consummate the sale. In case of failure of the vendees to perform at the time specified, it was provided that all their interest in, or right to, a conveyance should “ipso facto cease and determine absolutely.” It was also provided that the stipulations of the contract should bind the heirs, executors, etc., of the parties. On March 27, 1886, the parties agreed in writing upon the terms of the purchase of the materials and fixtures. 0. died April 22, 1886, leaving a will. The executors duly qualified, and prior to the time specified in the contract for performance they agreed with the vendees to postpone performance until June 1, 1887. On that day the vendees performed and the executors conveyed the premises. In an action brought by the executors to determine, among other things, as to whether the proceeds of sale should be distributed to the next of kin, to the exclusion of one heir not a next of kin, held, that there was an equitable conversion of the real estate into personalty at the time of the execution of the contract, and that there was no default; that the executors, acting in good faith, had the right, prior to default, to extend the time of performance; and, therefore, that the next of kin took the avails as personal property to the exclusion of those who were only heirs at law.</p>

<p>A parol gift of real estate and a parol promise to convey the same is valid and enforcible in equity, where the donee has entered into possession of the property and made permanent improvements thereon, on the faith of the donor’s promise, and this, although when specific performance by the donee is claimed, the rental value of the property for the time it has been occupied by the latter would be more than the amount expended by him.</p> <p>In 1872 C., plaintiff’s testator, who was half-brother of defendant, and at whose request she and her husband had come to the city of Kingston to reside, requested the husband to build a house for her on land owned by C., at a cost specified, and to bring the bills to him for payment. The house was built at a cost exceeding by about $1,200 the sum named, which sum 0. paid, and defendant went into occupation thereof and made valuable improvements upon the premises, of which 0. had knowledge. After defendant had contracted to build the house C. stated that it was built for defendant and was hers, and so spoke of it to different persons at various times. In an action of ejectment to recover possession of the premises, the court found that the improvements, as well as the payment of the §1,200, were made and expended on the faith of the promises of O. to give the property to defendant. The court also found that the total amount expended by defendant for permanent improvements, repairs, taxes, insurance, etc., from the beginning of the erection of the house to the time of trial was §4,734.26, and the fair rental value during that period was §5,000. Held, that defendant was the owner of the equitable title; and ' so, that the action was not maintainable.</p>

<p>The defense of usury must be founded on the loan or forbearance of money; if neither of these elements exist in a contract there is no usury, however unconscionable the contract may be.</p> <p>In an action to foreclose a mortgage, wherein the defense was usury, substantially these facts appeared: In 1883 H. executed to S., plaintiffs testator, a bond and mortgage for §2,500, payable ten years from date. In 1885 H. bid in on foreclosure sale, for the benefit of defendant F., certain real estate, taking title in his own name. In 1886 S. desired H. to reduce his debt to §1,000, which H. agreed to do if S. would accept inpayment $700 in money and the bond and mortgage of F. for §800, payable in five years from date. S. desired a bonus for taking the bond and mortgage; this H. refused to pay, but referred S. to F. The parties met; H. executed and delivered to F. a deed of the property so purchased, she executed and delivered in return her bond and mortgage on the premises for §800. These, with §700 in money, H. handed to S., who refused to accept them until he received “a present.” F. then paid S. fifteen dollars, and thereupon the latter accepted the securities and the money in payment of §1,500 upon the mortgage of H. Held, that the defense was not established; that there was no loan made by S. or forbearance on his part, but simply a change of securities for an existing-debt; and that S. could lawfully demand compensation for assenting to the transaction.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the trial court to refuse to instruct the jury that the plain meaning of the contract was that all the goods in the premises were sold ; that the words “ goods on hand ” meant goods physically in the premises at the time.

The action is brought against the executrix of Daniel Byrne, deceased, and the Corn Exchange Bank, to obtain a judgment directing the latter to pay to the plaintiffs certain moneys standing to the credit of the deceased ; claimed by them to be the proceeds of certain drafts transmitted to the deceased as their agent and to have been received by him in such fiduciary capacity.

<p>A servant who sustains an injury from the negligence of a superior agent engaged in the same general business, cannot maintain an action against the common employer, although he was under the control of the agent and could not guard against his negligence.</p> <p>In an action to recover damages for alleged negligence causing the death of K., plaintiffs’ intestate, it appeared that the latter was a car repairer in defendant’s employ. In the repair yard where K. was employed were two tracks exclusively for repairing cars, and another track for cars needing repairs, upon which track cars were shunted at all hours of the day. The repairing tracks were protected by flags when men were at work under the cars, but no such precaution was taken on the third track, as no repairing was done thereon. A large number of men were employed in the yard, who were divided into gangs. K. was engaged in repairing a car on one of the repair tracks; needing a bumper spring, and, not being able to obtain it of one of the employees of defendant, whose duty it was to furnish repairing materials, or to find one in the yard, he reported the fact to T., his gang boss, who directed him to go to said third track and take a spring' from a car thereon. While engaged under said ear in removing the spring some other cars were backed on the track, moving that under which K. was at work, and he was injured. There was no evidence that it was T.’s duty to furnish materials required by those working under him. Held, that defendant was not liable; that T., when he gave the direction, was in no legal sense the representative of defendant, but merely a fellow-servant of K., for whose negligence it was not liable.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in denying plaintiff’s motion for a new trial.

The plaintiff brought this action to recover damages from the defendant for causing the death of her intestate. The accident occurred at the Division street crossing of the defendant’s railroad, in the village of Saratoga Springs. Division street crosses the defendant’s tracks east and west, at a point immediately south of the railroad station. The street crossing at this point is about forty feet in width and planked.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in not directing a non-suit in this action at the close of plaintiffs case; in any event, it should have directed a verdict in compliance with, the defendant’s motion at the close of defendant’s case. The plaintiff failed to maintain his case by a preponderance of proof.

10, 1894, which affirmed a judgment in favor of defendants entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. The former decision of this court should have been treated by the court below as a final adjudication of the invalidity of the assignment. (130 N. Y. 597.) Nor is the case changed to the advantage of the defendants by the additional or new evidence given on the second trial.

<p>Appeal from judgment of the General Term of the Superior Court of Buffalo, entered upon an order made May 2, 1894, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for the negligént killing by defendant of plaintiff’s husband.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The trial court should, at the close of the evidence, have directed a verdict for the defendant. The exception taken to the court’s refusal to do so was valid, and fully presents for review by this court all questions of fact in the case. For the refusal of the court so to do a new trial should be granted. (Biesegal v. N. Y. C. & H. R. R. R. Co., 40 N. Y. 9; Hatty v. N. Y. C. & H. R. R. R. Co., 42 id. 468; Young v. N. Y, L. E. & W. R. R. Co., 101 id. 500; Cordell v. N. Y. C. & H. R. R. R. Co., 70 id. 119; Woodward v. N. Y., L. E. & W. R. R. Co., 106 id. 369; Scott v. P. R. R. Co., 130 id. 679; C., B. & Q. R. Co. v. Flint, 22 Ill. App. 502.)</p> <p>The question of ordinary care is one of fact for the jury. (Holly v. B. G. Co., 8 Gray, 131; W. R. Co. v. McDaniels, 107 U. S. 454; Ernst v. H. R. R. R. Co., 35 N. Y. 9.)</p>

The facts, so far as material, are stated in the opinion. That part of the act of 1892 which declares that no debt, contracted in the purchase of non-taxable property, shall be deducted in making assessments for personal property, is void under the Constitution of the United States.

The allegations of the complaint, so far as material, are set forth in the opinion. The lien having been discharged by the giving of a bond, judgment cannot actually be rendered against the property. (Lawson v. Reilly, 13 Civ. Pro. Rep. 290.) The lien against the property being discharged, the sureties stand in the place of the property. ( Ward v. Kilpatrick, 85 N. Y. 418; Bulkeley v. Moses, 23 Civ. Pro.

The nature of the action and the facts, so far as material, are stated in the opinion. The injunction should be absolutely vacated on the insufficiency of the papers upon which it was granted. (Code Civ. Pro. § 604:; Beach on Inj. §§ 18, 47, 133, 136 ; McHenry v. Jewett, 90 N. Y. 58 ; T., etc., R. R. v. B., etc., R. R., 86 id. 107; Jackson v. Bunnell, 113 id. 216; Olssen v. Smith, 7 How.

<p>Under the provisions of the New York Consolidation Act (§ 307, chap. 410, Laws of 1882), as amended in 1885 (chap. 364, Laws of 1885), which provides that any member of the police force who has performed duty thereon for twenty years or more, “ shall, by resolution adopted by a majority vote of the full board, be relieved and dismissed from such force and service and placed on the roll of the police pension fund,” the police board is not absolutely bound to pass the prescribed resolution, where, upon application of a member of the force to be retired and placed on the pension roll, it appears that he has served for twenty years ; a discretion is vested in the board, not an unlimited and unreviewable discretion, but a judicial one, to be executed reasonably and. fairly.</p> <p>'Where, in proceedings by mandamus to compel said board to pass a resolution granting the application of a member of the police force who had served the prescribed twenty years, to be relieved from the force and ' placed on the pension roll, it appeared that immediately after the application, and before it had been acted upon, grave charges of misconduct on the part of the applicant as a policeman, were preferred against him, held, that the board had the right, before proceeding to act upon the application, to investigate the charges, and if found to be true and of such a nature as to authorize conviction, it would be justified in convicting • and dismissing the relator from the force, and the dismissal would be a conclusive reason for denying his application to be placed on the pension roll; that while it was the duty of the board to act with .reasonable promptness upon the charges preferred, it must be assumed that they would act in entire good faith; and so, that the application for the man- ' damus was properly denied.</p>

<p>Appeal from order of the General Term of the Superior Court of the city of New York, made February 15, 1895, which affirmed an order of Special Term granting an application by the relator for a writ of peremptory mandamus.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Chapter 104 of 1893 is a consistent expression of a long-established legislative policy to make up to justices of the Supreme Court the increase in the expenses of living occasioned when they are required to perform duties away from their homes. (Laws of 1870, chap. 408, § 9; Laws of 1852, chap. 374; Laws of 1855, chap. 575 5 Laws of 1882, chap. 410.) The compensation provided for by chapter 104 of the Laws of 1893 is not “compensation for services ” within the meaning of the constitutional provisions above quoted. (Laws of 1872, chap. 541; People ex rel. v. Wemple, 52 Hun, 414; 115 N. Y. 302; Laws 1893, chap. 89, 726.) If the compensation for expenses and disbursements, provided for by chapter 104 of the Laws of 1893, does not come within the constitutional description of “ compensation for services,” then it is compensation established by law within the meaning of' the constitutional provision. (Barto v. Himrod, 8 N. Y. 483.) The change from old article 6, section 14, to new article 6, section 12, strengthens the argument' for the validity of the act of 1893. (Const. N. Y. art. 1, § 16 ; Id. art. 6, § 5.)</p>

'Appeal from order of the general term of the supreme court in the fourth judicial department, which reversed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at circuit and granted a new trial.

This action was brought to compel a specific performance by defendant of a contract to purchase certain premises known as the Long Island Savings Bank of Brooklyn, by which contract plaintiffs agreed to convey said premises to defendant by a full covenant warranty deed, free from all incumbrances. Defendant refused to accept a deed on the ground of defect in plaintiffs’ title. The facts, so far as material, are stated in the opinion.

This action was brought to recover damages for the death of Hoyt M. Bogart, plaintiff’s intestate, while in the employ of defendant, a railroad corporation, as a fireman on one of its engines, through an accident which resulted from the carrying away of a bridge on defendant’s road.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 17,1893, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for the negligent killing of Michael Kennedy, plaintiff’s intestate.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The plaintiff’s intestate knew that the yard in which he was injured was in an uncompleted condition, and the danger of falling through the structure was one of the risks of his employment assumed by him, and for which the defendant cannot be held liable. (Arnold v. D. & H. C. Co., 125 N. Y. 15; Gibson v. E. R. Co., 63 id. 452 ; De Forest v. Jewett, 88 id. 264; Hickey v. Taaffe, 105 id. 36 ; Powers v. N. Y., L. E. & W. R. R. Co., 98 id. 274; Shaw v. Sheldon, 103 id. 667; Williams v. D., L. & W. R. R. Co., 116 id. 628; Hudson v. O. S. S. Co., 110 id. 625; Hussey v. Coger, 112 id. 614; Curran v. W. C. M. Co., 36 id. 153; Stewart v. N. Y., O. & W. R. R. Co., 126 id. 631; White v. W. L. Co., 131 id. 631 ; Sullivan v. I. M. Co., 113 Mass. 396; Ragon v. T., etc., R. R. Co., 97 Mich. 265; Leary v. B., etc., R. R. Co., 139 Mass. 580; Buzzell v. L., etc., Co., 77 Am. Dec. 212; Hayden v. S. M. Co., 29 Conn. 548 ; Clark v. Holmes, 7 H. & N. 937.) The plaintiff failed to establish her contention that the defendant was guilty of negligence in failing to provide her intestate with a reasonably safe place in which to perform his work. (Burke v. Witherbee, 98 N. Y. 563; Sweeney v. B. & J. E. Co., 101 id. 523; Bajus v. S. B. & N. Y. R. R. Co., 103 id. 312; Hickey v. Taaffe, 105 id. 26; Dobbins v. Brown, 119 id. 188; Berrigan v. N. Y., L. E. & W. R. R. Co., 131 id. 582; Gibson v. E R. R. Co., 63 id. 449; Crispin v. Babbitt, 81 id. 516; Stringham v. Hilton, 111 id. 188 ; Naylor v. C. & N. W. R. Co., 53 Wis. 661; Stephenson v. Duncan, 73 id. 406; Gilbert v. Guild, 144 Mass. 601; Sullivan v. I. M. Co., 113 Mass. 398.) The plaintiff failed to establish an indispensable element in her case, namely, that her intestate himself was free from negligence contributing to his injury. This fact precludes her recovery. (Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330; Solomon v. M. R. Co., 103 id. 437; Dubois v. City of Kingston, 102 id. 219 ; Palmer v. P. Co., 111 id. 488; Tollman v. S, etc., R. R. Co., 98 id. 199; Reynolds v. N. Y. C., etc., R. R. Co., 58 id. 248; Hale v. Smith, 78 id. 483; Arnold v. D. & H. C. Co., 16 N. Y. S. R 310; Eacles v. Clark, 23 J. & S. 132.) The law looks to the direct or proximate cause and not to the intervening or remote cause. The proximate cause of the injury was the negligence of her intestate, and hence plaintiff should have been nonsuited. (Ins. Co. v. Tweed, 7 Wall. 44; Wilds v. H. R. R. R. Co., 24 N. Y. 438 ; Dwight v. G. L. Ins. Co., 103 id. 359 ; Ryan v. M. R. Co., 121 id. 133; Searles v. M. R. Co., 101 id. 662; Taylor v. City of Yonkers, 105 id. 209 ; Kaveny v. City of Troy, 108 id. 577.) The learned trial judge erred in refusing to charge the jury the propositions, as requested by the defendant, in regard to the duty which the defendant owed to the plaintiff to warn him of dangers. (Taaffe v. Hickey, 105 N. Y. 36; Palmer v. P. Co., 111 id. 488; Coleman v. People, 58 id. 561, 562; Vandervoort v. Gould, 36 id. 639, at 644; People v. Gonzales, 38 id. 59; Haring v. N. Y. & E. R. R. Co., 13 Barb. 15; Suydam v. G. S. R. R. Co., 41 id. 380.)</p> <p>The defendant clearly failed in its duty to provide and maintain a reasonably safe structure on which deceased might prosecute his labors. Its negligence was gross, because it knew of the danger and failed to adopt the simplest expedient to remedy it. (Pantzar v. T. F. I. M. Co., 99 N. Y. 372; Stephens v. H. V. K. Co., 69 Hun, 375; 143 N. Y. 633 ; Freeman v. P. M. Co., 15 N. Y. Supp. 657; Hawley v. N. C. R. Co., 82 N. Y. 370; Sodeman v. T. T. S. & I. Co., 53 N. Y. S. R. 678; Racine v. N. Y. C. & H. R. R. R. Co., 53 id. 680; McLean v. S. O. Co., 50 id. 626.) Assuming that the yard was an incomplete structure in premature use, the decedent assumed only those perils that were necessarily attendant upon such condition, and the defendant was not thereby relieved of all liability for its failure to make the structure as reasonably safe as its unfinished condition would permit of. (Pantzar v. T. F. I. M. Co., 99 N. Y. 368; Booth v. B. & A. R. R. Co., 73 id. 38.) The exceptions to the refusals to charge on the subject of warnings have no merit. (Raymond v. Richmond, 88 N. Y. 671; Tucker v. Ely, 37 Hun, 565 ; Palmer v. Dearing, 93 N. Y. 10 ; Wallace v. C. V. R. R. Co., 138 id. 302.)</p>

<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 a judgment in favor of plaintiff and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for injuries received by Eugene Sisco, the original plaintiff, while in the employ of defendant, a railroad corporation, alleged to have been caused by defendant’s negligence.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The trial court erred in submitting to the jury the question as to whether the defendant was not negligent in putting the mail crane so close to the road. There was not sufficient evidence in the case upon which negligence in this respect could be predicated or inferred. (Dobbins v. Brown, 119 N. Y. 188 ; Reichel v. N. Y. C. & H. R. R. R. Co., 130 id. 682.) The trial judge erred in holding that it was a question of fact for the jury, whether the defendant was not negligent in failing to give reasonable warning to its employees of the presence of the mail crane, so that they might guard against the danger. (Lovejoy v. B. & L. R. R. Co., 125 Mass. 79 ; Bellows v. P. & N. Y. C. & R. Co., 157 Penn. St. 51; Kern v. D. C. & S. R. Co., 125 N. Y. 50; Crown v. Orr, 140 id. 450.) The judgment cannot be upheld upon the ground of any alleged negligence upon the part of the defendant in making use of the particular kind of a mail crane which it did. (France v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182; Flinn v. N. Y. C. & H. R. R. R. Co., 142 id. 11; Williams s. D., L. & W. R. R. Co., 106 id. 634; Gibson v. E. R. Co., 63 id. 450.)</p> <p>As to defendant’s motion for a non-suit on the ground that there is no evidence of negligence on the part of the defendant, it is urged that defendant’s negligence was of the most glaring and culpable nature. (Plank v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 607; Fredenburgh v. N. C. R. Co., 114 id. 582; Palmer v. D. & H. C. Co., 120 id. 110 ; Donnegan v. Erhardt, 119 id. 468 ; Wallace v. C. V. R. R. Co., 138 id. 302; Meeks v. N. Y. C. R. R. Co., 69 Hun, 488; 140 N. Y. 622.) The second ground stated in defendant’s motion for a non-suit as to risk assumed by plaintiff is untenable. (Kain v. Smith, 89 N. Y. 375 ; Mehan v. R. R. Co., 73 id. 585 ; Pantzar v. T. F. I. M. Co., 99 id. 368 ; Buckley v. R. R. Co., 117 id. 645 McGovern v. C. V. R. R. Co., 123 id. 280; Wallace v. R. R. Co., 138 id. 302; Meeks v. N. Y. C. & H. R. R. R. Co., 69 Hun, 488 ; 140 N. Y. 622 ; Davidson v. Cornell, 132 id. 228.)</p>

This action was brought to recover damages for injuries .received by plaintiff while upon the premises of defendant, a railroad corporation, through the alleged negligence of the latter. The facts, so far as material, are stated in the opinion. Plaintiff should have been non-suited.

This action was brought by plaintiffs, who were four of the children of Barbara Goldsmith, deceased, against defendant, their brother, and the only other child of the deceased.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 18, 1894, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p> <p>The nature of the 'action and the facts, so far as material, are stated in the opinion.</p> <p>On a review cases will be considered on the theory on which they were tried. (Dauscha v. Brower, 72 Hun, 221-224; Salisbury v. Howe, 87 N. Y. 128; Storrs v. Flint, 14 J. & S. 498-519 ; Baird v. Mayor, 96 N. Y. 603; Stapenhorst v. Wolff, 65 id. 597; Wright v. Delafield, 25 id. 266.) The motion for a non-suit made by the defendant should have been granted. (Young v. Johnson, 46 Hun, 164; 123 N. Y. 226; Crossman v. Bradley, 53 Barb. 125; People, v. Morrison, 1 Park. Cr. Rep. 625, 643; People v. Loftus, 34 N. Y. S. R. 525, 527; People v. Hulse, 3 Hill, 309, 316, 317 ; People v. Quinn, 50 Barb. 132; Reynolds v. People, 41 How. Pr. 179, 187; People v. O'Sullivan, 104 N. Y. 481-485.) The plaintiff did not resist to the extent of her ability, but on the contrary “ protesting she would ne’er consent, consented.” She made no outcry at the time. She made no complaint of the alleged outrages until after she returned from Connecticut, more than three years after the alleged assaults. (People v. Dohring, 59 N. Y. 385; People v. Hulse, 3 Hill, 316.) The evidence fails to show that there was any force used by the defendant to accomplish his purpose, and'shows that none was attempted or intended. (People v. Kirwin, 51 N. Y. S. R. 299.) The verdict was against the evidence. (Kummer v. C. & T. S. R. R. Co., 50 N. Y. S. R. 332; Dwight v. G. Ins. Co., 103 N. Y. 341.)</p> <p>The question involved was solely one of fact for the determination of the jury. (People ex rel. v. Special Sessions, 18 Hun, 331; Nichols Case, Russell & Ry. 130; Roscoe on Crim. Ev. [5th Am. ed.] 287; Day's Case, 38 E. C. L. [9 C. & P. 722] 419; Regina v. Case, 1 Eng. Law & Eq. 544; People v. Clemens, 37 Hun, 580; Reg. v. Hallett, 9 Car. & Payne, 748 ; Don Moran v. People, 25 Mich. 356; 12 Am. Rep. 283; Whitaker v. State, 50 Wis. 518 ; 36 Am. Rep. 856 ; Anderson v. State, 104 Ind. 467; Sidley v. State, 4 id. 580; Pomeroy v. State, 94 id. 95; Com. v. McDonald, 110 Mass. 405; 2 Bish. Cr. Law, § 1122; Huber v. State, 126 Ind. 185 ; Queen v. Flattery, L. R. [22 Q. B. Div.] 410; Hayes v. People, 1 Hill, 352; People v. Bransby, 32 N. Y. 525 ; People v. Bowles, 3 N. Y. Cr. R. 447; Higgins v. People, 58 N. Y. 379; People v. Connor, 126 id. 278.) Hone of the objections to the admission or rejection of evidence, the charge or refusals to charge, were well taken. (Greenleaf v. People, 75 N. Y. 90.)</p>

The nature of this proceeding and the facts, so far as material are stated in the opinion. There is no basis for the maintenance of this proceeding against the estate of the testator. (Godding v. Porter, 17 Abb. Pr. 374; Smith v. Patton, 9 Abb. [N. S.] 205; 2 R. S. chap. 6, tit. 3, art. 2, §§ 34-39; Code Civ.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 18, 1894, which affirmed a 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>The plaintiff is not entitled to a judgment against the defendants. (Menagh v. Whitewell, 52 N. Y. 146 ; Bulger v. Rosa, 119 id. 450 ; Coats v. Donnell, 94 id. 168; Bank of Buffalo v. Thompson, 121 id. 280.) The defendants are not liable under the last clause of the section under which this action is brought, for the reason that there was never any transfer or assignment to them of property in contemplation of the insolvency of the company. (Hayes v. Beardsley, 136 N. Y. 299; Paulding v. C. S. Co., 94 id. 334; Dutcher v. I. & T. N. Bank, 59 id. 5; Parish v. Wheeler, 22 id. 494; Curtis v. Leavit, 15 id. 9 ; Rudd v. Robinson, 126 id. 113.) The court should have permitted the defendants to show that the judgment of sequestration and appointment of the plaintiff as receiver of the Rheubottom & Teall Manufacturing Company is void; that the court obtained no jurisdiction of the subject-matter therein, or power to proceed therein, because there was no judgment upon which to found the same. (Hubbard v. N. P. Ins. Co., 11 How. Pr. 149, 151; Conroe v. N. P. Ins. Co., 10 id. 403, 405 ; O. S. Factory v. Dolloway, 21 N. Y. 449 ; W. T. Co. v. Scheu, 19 id. 408 ; U. S. Co. v. City of Buffalo, 82 id. 351; Phillips v. B. L. Co., 21 Atl. Rep. 640, 641; Carpenter v. W. A. B. Co., 32 Fed. Rep. 434, 435 ; Reifsnider v. A. I. P. Co., 45 id. 433; ' Barrett v. C. & L. H. R. R. Co., 4 Hun, 114; Decker v. Gardner, 124 N. Y. 334; Code Civ. Pro. §§ 1784, 1788, 2439; Ferguson v. Crawford, 70 N. Y. 253; Colwell v. G. N. Bank, 119 id. 408; Morrow v. Freeman, 61 id. 515, 518, 521; Bullymore v. Cooper, 64 id. 236 ; Smith v. Reed, 134 id. 568, 571; Adams v. S. & W. R. R. Co., 10 id. 328; Cole v. M. I. Co., 133 id. 164; O’Brien v. McCann, 58 id. 373 ; Milbank v. Jones, 141 id. 340.)</p> <p>The appellants attempted to attack the judgment of sequestration and order appointing the receiver collaterally, as without jurisdiction. This question has already been decided by this court adversely to the appellants. (Hunting v. Blun, 143 N. Y. 511; Bangs v. Duckenfield, 18 id. 592; Fisher v. Hepburn, 48 id. 53; Whittlesey v. Frantz, 74 id. 456; A. Ins. Co. v. Barnard, 96 id. 525 ; Potter v. M. Bank, 28 id. 641; Moeschler v. Lochte, 12 N. Y. S. R. 855 ; Andrews v. Moller, 37 Hun, 480.) The appellants contend that the plaintiff has not filed a bond as permanent receiver. We answer that the plaintiff qualified as temporary receiver and was empowered by the order appointing him such temporary receiver to maintain this action, and that it was not necessary to refile that bond or another. (Code Civ. Pro. § 1788 ; Whiteside v. Pendergast, 2 Barb. Ch. 471; Morgan v. Potter, 17 Hun, 403.) Plaintiff has a good cause of action and defendants are liable. (1 R. S. chap. 18, tit. 4, § 4; Bank of Buffalo v. Thompson, 121 N. Y. 280 ; N. Bank v. Tarbox, 38 Hun, 57; Bradner v. Strong, 89 N. Y. 299 ; Palmer v. Scott, 68 Ala. 380 ; Sheldon v. Clifton, 23 How. [U. S.] 172; Throop v. H. Co., 125 N. Y. 530; Knox v. Baldwin, 80 id. 610.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The execution against the property of William H. Bowden, issued on the 8th day of July, 1892, and returned wholly unsatisfied, was perfectly valid and regular. (Code Civ.

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made May 28, 1894, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in denying the motions to dismiss the complaint. (Stone v. D. D., eta., R. R. Co., 115 N. Y. 104; Davenport v. B. C. R. R. Co., 100 id. 632; Kuntz v. City of Troy, 104 id. 351; Fenton v. S. A. R. Co., 126 id. 625 ; Winterfield v. S. A. R. Co., 49 N. Y. S. R. 435; Bulger v. A. R. R. Co., 42 N. Y. 459; Baker v. E. A. R. Co., 62 Hun, 39; Jaquinto v. B. & S. A. R. Co., 2 Misc. Rep. 174; Dudley v. Westcott, 44 N. Y. S. R. 882; Cosgrove v. Ogden, 49 N. Y. 255; Birkett v. K. I. Co., 110 id. 504; Huerzeler v. C. R. Co., 139 id. 490; Ehrman v. B. C. R. Co., 131 id. 576; Murphy v. Orr, 96 id. 14.) The court erred in its refusal to charge. (Code Crim. Pro. § 914; Volans v. Owen, 74 N. Y. 526 ; Stevens v. Cheney, 36 Hun, 1.)</p> <p>The motions to dismiss the complaint were properly denied. (Birkett v. K. I. Co., 110 N. Y. 504; Stone v. D. D. c& B. R. R. Co., 115 id. 104; Thurber v. H. R. R. Co., 60 id. 333.) The trial court would not have been justified in taking the question of the parent’s negligence from the jury, but it was properly a question to-be determined by them upon all the evidence. It is not negligence, as matter of law, for a parent to allow a child of the age of plaintiff’s intestate to go upon the street to play. (Murphy v. Orr, 96 N. Y. 14; Moebus v. Herrmann, 108 id. 353; Birkett v. K. I. Co., 110 id. 504; Huerzeler v. C. F. R. R. Co., 139 id. 490; Stone v. D. D. & B. R. R. Co., 115 id. 104; Kuntz v. City of Troy, 104 id. 344; Wendell v. N. Y. C. R. R. Co., 91 id. 420.) The refusal of the court to charge as a proposition of law that the father has no claim on the earnings of the son beyond the age of twenty-one years, except in case the father becomes poor, unable to support himself and the son is shown to have means was not error. (Hine v. Bowe, 114 N. Y. 350, 357; Conley v. Meeker, 85 id. 618; Raymond v. Richmond, 88 id. 671; Moody v. Osgood, 54 id. 488; Birkett v. K. I. Co., 110 id. 504.)</p>

This action was brought to enforce the specific performance by the defendants Austin Corbin and Charles M. Pratt of a contract to purchase from plaintiffs certain real estate situated upon Montauk Point in the county of Suffolk.

Kent, deceased, entered upon a decision of the court on trial at Special Term. The nature of the action, the facts and provisions of said will, so far as material, are set forth in the opinion. Held: without appeal, not to be imperative and not to operate as an equitable conversion. (R. S. Uses & Trusts, § 56.) If there be no valid trust for the widow all the remainders fail.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants were guilty of negligence in starting the elevator and tipping the safe over, while the deceased and the rest of Marvin’s men were removing it from the car. (Coughtry v. G. W. Co., 56 N. Y. 124; Ray’s Per.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The assessment by the comptroller is erroneous and unsupported by the evidence.

<p>Upon a final settlement of the accounts of executors, these facts appeared: In proceedings taken before the surrogate by legatees to revoke the letters testamentary, a citation was issued, and the executors were enjoined from acting as such until the determination of the surrogate upon the application. The executors resisted the application, and the proceedings resulted in an order revoking the letters unless the executors gave a bond as prescribed by the Code of Civil Procedure (§ 2687, sub. 3), and charging them with the disbursements of the petitioners. The executors complied with the order, continued in the performance of their duties, and on the final accounting claimed a credit for the amounts they alleged they were liable to pay their counsel for services performed while they were so enjoined and for services rendered by their attorney in resisting said application. The surrogate found, upon evidence justifying the findings, that the application was unreasonably resisted, and he disallowed the claim. Held, that this was within the discretion of the surrogate and, the General Term having affirmed his decree, this court could not interfere.</p>

O. Sherwood, as receiver of the Philadelphia, Reading and New England Railroad Company, the lessee of defendant, to build a certain undercrossing for the convenience of plaintiffs’ farm, in accordance with a judgment in the above-entitled action. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made February 12, 1895, which affirmed an order of Special Term directing plaintiff, by supplemental summons and complaint, to bring in other parties defendant.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>No judgment of any sort can be rendered in this action in favor of the plaintiff against any of the parties whom the order brings in. (Post v. Campbell, 83 N. Y. 279; Laws of 1885, chap. 342, §8; Whitney v. McKinney, 7 Johns. Ch. 147.) No one need be made a party against whom, if brought to a hearing, the plaintiff can have no decree. (3 P. Wms. 311; Whitney v. McKinney, 7 Johns. Ch. 144, 146; Fenton v. Hughes, 7 Ves. 287; Story’s Eq. Pl. § 231; Gilb. Eq. 54, 55; 1 Harrison’s Ch. Pr. [Lond. ed. 1808] 37; [Phila. ed. 1807] 76; Edwards on Parties [ed. 1832], 14; Barb. Parties [ed. 1884], 482, 485 ; Le Texier v. Anspach, 15 Ves. 159, 164; Whitworth v. Davis, 1 V. & B. 545, 550 ; Turner v. Robinson, 1 Sim. & Stu. 41; Van Reemsdyk v. Kane, 1 Gal. 371, 383, 630; West v. Randall, 2 Mass. 181, 192, 197.) The Code has not made any change by way of adding to those who were necessary or proper parties in the late Court of Chancery. (Code Civ. Pro. §§ 447, 452; Chapman v. Forbes, 123 N. Y. 532; Post v. Campbell, 83 id. 279; Whitney v. McKinney, 7 Johns. Ch. 146.) The order is appealable. (Chapman v. Forbes, 123 N. Y. 532.)</p> <p>A determination in this action will not be binding upon the Moffett, Hodgkins & Clarke Company, its assignee, Marshall, and its receivers, Messrs. Booream and O’Brien, without making them parties. (Code Civ. Pro. § 452; Laws of 1885, chap. 342; Osterhoudt v. Bd. Suprs., 95 N. Y. 242.) It would not be just or legal to take any sum which might be determined on a trial of this action to be due to the Moffett, Hodgkins & Clarke Company and pay it over to the plaintiff without giving the owner of the fund an opportunity to be heard. (Sullivan v. Decker, 1 E. D. Smith, 699 ; Laws of 1851, chap. 513 ; Laws of 1885, chap. 343; Thomas v. Sahagan, 10 N. Y. Supp. 874; Williams v. Verein, Id. 368.) The appeal from the decision of the General Term in this case should be dismissed. (Code Civ. Pro. § 190; Spears v. Mayor, 72 N. Y. 442; I. G. L. Co. v. Treman, 93 id. 660.)</p> <p>An attorney has a general or retaining lien for a balance due him in his professional employment upon all papers and documents which come to him by reason of his professional character. (St. John v. Defendorf, 12 Wend. 261; Walker v. Sargent, 14 Vt. 247; Ward v. Craig, 87 N. Y. 521, 550; Lorillard v. Barnard, 42 Hun, 545; 1 Am. & Eng. Ency. of Law, 969 ; 52 N. Y. 489.) A deed, to be effectual, must be delivered, and, although its appearance upon the record may amount to prima facie evidence of delivery, that evidence may be rebutted, even where the recording is apparently regular. (Cusack v. Tweedy, 56 Hun, 516; Fisher v. Hall, 41 N. Y. 416 ; Bryant v. Bryant, 42 id. 11.) A complete determination of the controversy cannot be had without the presence of Gerrit S. Conger and Arthur W. Orvis as defendants, and the court should, as it has done, direct them to be brought in as parties to this action. (Code Civ. Pro. § 452; Laws of 1885, chap. 342; Sullivan v. Decker, 1 E. D. Smith, 699; Thomas v. Sahagan, 10 N. Y. Supp. 874.)</p>

<p>Where a railroad employee is injured through the negligent omission of duty on the part of a co-servant, although it appears that similar omissions by the latter had been habitual for some time prior to the injury, unless the master has actual notice of the omission, or unless the negligence is of such a character as to leave traces or evidences of it in the work itself which could be seen or discovered by reasonable examination, or unless the delinquencies were frequently displayed under the observation of some officer or foreman who represented the corporation and had power to discharge the negligent employee, the law will not imply notice to the company so as to charge it with the negligence under all circumstances simply from the lapse of a certain time since the co-employee began so to neglect his duties.</p> <p>C., plaintiff’s intestate, a brakeman in defendant’s employ, was working behind the cars of a freight train standing on a side track. N., a fellow-brakeman, working on the same train, had opened the switch and left it unguarded, and in consequence a passing train ran over the switch upon the side track and came into collision with the freight cars, causing C.’s death. In an action to recover damages no negligence on the part of defendant in employing R. was claimed; he had been in its employ about a year. Defendant had promulgated rules for the guidance of its servants, which provided that “ whoever opens a switch shall remain at it until it is closed or until he is relieved by some competent employee; ” also, that every employee whose duties are prescribed by the rules must have a copy of them on hand and be conversant with every rule, and must report any infringement of them to the head of his department. R. was familiar with and had a copy of the rules; he, as a witness for plaintiff, testified that for about four months prior to the accident he had been accustomed to habitually violate said rule in regard to switches. It was not claimed that any officer of or person representing defendant had actual knowledge of these violations, and the officers having charge and power to employ and discharge help certified that they never heard of them and from inspection, observation and report they supposed R. was competent and faithful. Held, the evidence did not justify a finding that defendant was chargeable with negligence in failing to discover R.’s violation of said rule and in omitting to discharge him; that, under the circumstances, negligence could not be imputed to it simply because for four months it had failed to detect R.’s delinquencies; that it was more reasonable to suppose that 0. had knowledge of them and he, having failed to report them, might be regarded as having voluntarily assumed the risks incident thereto.</p>

<p>While the determination of the General Term upon all questions as to the weight of evidence is final, and not reviewable here, where there is no conflict in the evidence, or that which appears to be in conflict is but a mere scintilla, or is met by well-known and scientific facts about which there is no conflict, this court may review the decision, if contrary to the evidence, and reverse it.</p> <p>In an action to recover damages for alleged negligence causing the death of H., plaintiff's intestate, it appeared that he was a fireman on one of defendant’s engines. When the train was stopping at a station to take water for the engine the engineer left it in the charge of H. and went into the depot; shortly thereafter the crown sheet of the engine collapsed and the escaping steam inflicted injuries upon H. causing his death. An examination of the engine showed that the crown sheet had been scorched, and this caused the collapse. Plaintiff claimed that the scorching took place at some previous time, and that defendant was negligent in sending the engine out in an imperfect condition. The engineer testified in substance that on arrival at the station there was about six inches of water over the crown sheet. This was determined by trying the gauge cock. Experts, however, testified that the sheet could not scorch or become red hot while covered with water, and that, in their opinion, from its appearance after the accident, which was described and as to which there was no question, it must have been red hot at the time it collapsed, and there was no evidence that the scorching was done at any other time. Held, the evidence did not justify a finding that the scorching took place at a time prior to the starting out of the engine, and so did not justify a verdict for plaintiff.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made November 21, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover damages for a breach of warranty on the sale of certain shares of stock.</p> <p>In February, 1883, the plaintiff, Titus, and defendants’ testator, E. Y. Poole, entered into an agreement whereby Poole was to purchase of Titus certain hotel property in the city of Ithaca at an agreed price of. $9,000; $4,000 of which was paid by Mr. Poole assuming a mortgage for that amount then on the premises and $5,000 by assigning to Titus a certain certificate of the alleged bank stock of the “Home Savings Bank ” of South Waverly, Pa., it being for 50 shares of one hundred dollars each.</p> <p>The negotiation for the sale took place at Ithaca, where the plaintiff resided, and was consummated there February 9, 1883, under the supervision of Mr. Ellsworth, by the conveyance by the plaintiff to Poole of the hotel property subject to a mortgage of $4,000, and by the transfer and delivery by Poole to the plaintiff of the certificate. The certificate was printed and was in the following form:</p> <p>“No. 33. State of Pennsylvania. 50 shares.</p> <p>“ The Home Savings Bank. Organized under act of Legislature of Pennsylvania.</p> <p>“ Authorized capital, $100,000. Shares $100 each.</p> <p>“ Virtue, Liberty, Independence.</p> <p>“ South Waverly.</p> <p>“ This is to certify that E. V. Poole is entitled to fifty shares in the capital stock of the Home Savings Bank of South Waverly, transferable only on the books of the bank in person, or by attorney on the surrender of this certificate.</p> <p>“ South Waverly, Dec. 10th, 1814.</p> <p>“ S. KIBBY“ Prest.</p> <p>“ C. E. PENDLETON,</p> <p>“ Endorsed: - Cash’r.”</p> <p>It was transferred to the plaintiff by the indorsement of Poole, signed to the blank power of attorney printed on the back.</p> <p>The action was brought December 26, 1888, against the executor of Poole for the breach of alleged warranties made by Poole on the transfer of the stock to the plaintiff, viz.: (1) That the Home Savings Bank was a regularly organized bank under the laws of Pennsylvania; (2) that it was all right, and that the stock was good, high stock and worth one hundred cents on the dollar; (3) that it was a dividend-paying stock. There was but one witness as to the transaction between Poole and the plaintiff, and his evidence is uncontradicted. One of the parties was dead and the plaintiff was not a competent witness. Ellsworth testifies that the parties being present in his office, Poole produced the certificate of stock and that the witness opened and looked at it and then said: “ This isn’t stock; that is a savings bank; a savings bank has no stock; ” and Mr. Poole said: “ It is a regularly organized bank under the laws of Pennsylvania and has savings bank privileges.” The witness further testified: “ Mr. Poole said in answer to my statement it was good stock, worth 100 cents on the dollar ; a dividend-paying stock; that he was one of the original, or one of the early stockholders; I don’t know but he used -the word ‘ first; ’ Mr. Titus said, ‘ If that is so, Mr. Poole, and it is all right, I will take the stock at $5,000 in the trade and deal.’ He said the capital was all paid up; I think he told the amount, $100,000, if it was $100,000; he said $100,000 capital paid up. * * * He said it was worth 100 cents on the dollar and was good high stock. * * * I think he said what kind of hands the bank was in, but I do not recollect the language he used. Mr. Titus said at that time in Poole’s presence, if the stock is all right as you say, we will make the trade or deal.”</p> <p>It appeared on the trial that the Home Savings Bank was not an incorporated bank, but was conducted by a partnership, of which one Kirby was the principal member. The business was established at Waverly, Pennsylvania, in 1873. It seems that in Pennsylvania there is no restriction upon individuals carrying on the business of private bankers. The laws of that state do authorize the establishment of banking corporations, subject to visitation, and the laws carefully guard the business of such corporations in the interest of stockholders and depositors. The capital stock of the Home Savings Bank was never paid up in full. When the stock in question was transferred by Poole to the plaintiff, there had been paid only the sum of $86,338. The evidence establishes beyond controversy that in February, 1883, the bank was hopelessly insolvent. It held the paper of Kirby to an amount nearly equal to its paid-up capital, and when the bank failed in 1887 the debt of Kirby amounted to $112,000, and but a small part of it has been paid. The public were not informed of the condition of the bank, and it was regarded by outsiders as solvent, and in some cases after that year the stock was sold in small amounts at par to persons who supposed the bank was incorporated. It paid occasional dividends from 1873 to 1887. It paid none in 1874, 1876, 1879, 1881, 1883, and none after 1884. The dividends when paid were four per cent per annum, with the exception that eight per cent was paid in 1875.</p> <p>Poole, the defendants’ testator, died October .7, 1887, the same year that the bank went into bankruptcy, leaving a will by which he appointed the defendants his executors. May 7, 1888, the claimant presented a verified claim to the executors in words following : “ Estate of Edward V. Poole, deceased. To Charles M. Titus, Dr. To amount due from E. V. Poole in his lifetime, on exchange of real estate for which a worthless certificate of alleged Home Savings Bank stock was fraudulently assigned to said Titus — $5,000, with interest on the same from February 10, 1883,” together with written offer to refer the same. June 19,1888, the executors rejected the claim. June 28, 1888, the plaintiff brought suit in the Supreme Court against the executors, founded on the transaction, and alleging fraud and deceit on the part of the testator in respect to the transfer of the stock and the making by him of representations (substantially like those set forth in the complaint in this action), which were alleged to have been false and fraudulent, and the plaintiff claimed $5,000 damages and interest from February 10, 1883. The action was tried in October, 1888, and resulted in a non-suit, on the .ground that the facts proven did not constitute a cause of ¡action. It was said on the argument that the precise ground of the non-suit was the failure of the plaintiff to prove the scienter. Subsequent to . the non-suit, and on the 26th day of December, 1888, and more than six months after the rejection of the claim originally presented to the executors, the present action was brought, based on warranty and not on fraud. Before bringing the second action a second claim, based on the transaction of February ■9, 1883, but setting out the representations as warranties, was presented and rejected. The action was tried before a jury, and resulted in a verdict for the plaintiff, $7,647.75, being the sum of $5,000, and interest thereon from February 9, 1883.</p> <p>Other facts are stated in the opinion.</p> <p>This action is barred by the short Statute of Limitations (Code Civ. Pro. § 1882), and is not saved from such bar by Code of Civil Procedure, section 405. ( Wintermeyer v. Sherwood, 77 Hun, 197; Gillespie v. Wright, 93 Cal. 169; Titus v. Poole, 60 Hun, 1; Raynor v. Laux, 28 id. 35 ; Eldred v. Eames, 115 N. Y. 401; Lockwood v. Robbins, 125 Ind. 398 ; Hill v. Bd. Suprs., 119 N. Y. 344 ; Ross v. Mather, 51 id. 108 ; Sibley v. Hastings, 21 Hun, 110 ; Degraw v. Elmore, 50 N. Y. 1; Neudecker v. Kohlberg, 81 id. 296.) The statement that the stock was good high stock and worth 100 cents on a dollar did not give the purchaser a cause of action for breach of warranty. (Ellis v. Andrews, 58 N. Y. 83 ; Chrysler v. Canaday, 90 id. 272; Homer v. Perkins, 124 Mass. 431; Nash v. M. T. I. & T. Co., 159 Mass. 437.) The objection to the question, “ Would you have purchased it (the stock) at all if you had known it was not an incorporated bank ? ” was erroneously overruled. (Hallstead v. Coleman, 143 Penn. St. 354; In re Gibbs, 157 id. 59.) The books of the Home Savings Bank and a transaction on the books of the Home Savings Bank were improperly allowed in evidence. (Code Civ. Pro. §§ 929, 930, 931.) The evidence of the financial condition of the Home Savings Bank in 1887 was improperly admitted under defendants’ objection. (Hutchings v. Hutchings, 98 N. Y, 56.)</p> <p>This action is not barred "by the Statute of Limitations. [Hayden v. Pierce, 144 N. Y. 572; Code Civ. Pro. § 405 ; Hoyt v. Bennett, 50 N. Y. 538.) There was a warranty expressed and implied. (Hubbell v. Meigs, 50 N. Y. 481; Smeltzer v. White, 92 id. 390— 399; Chase v. Evarts, 47 N. Y. S. R. 426 ; Simar v. Canaday, 53 N. Y. 298 ; Hawkins v. Pemberton, 51 id. 188; Shipper v. Bowen, 122 U. S. 575 ; Ross v. Terry, 63 N. Y. 613; D. Bank v. Jarvis, 20 id. 226, 229; Webb v. Odell, 49 id. 583 ; Mandeville v. Newton, 119 id. 10, 14.) The question, “Would you have purchased it at all if you had known it was not an incorporated bank ? ” was proper. (King v. Fitch, 2 Abb. Ct. App. Dec. 509.) The introduction of the books of the Home Savings Bank, and of transcripts taken from them as provided by sections 929 to 931 of the Code, was proper. (Titus v. Poole, 73 Hun, 383 ; 1 Greenl. on Ev. § 93; Burton v. Drake, 20 Wall. 125 ; F. N. Bank of Whitehall v. Tisdell, 84 N. Y. 655; Van Sachs v. Kretz, 72 id. 552.) This is an action on contract, and, although plaintiff has alleged warranty, he can recover, even though no warranty is proven, if the thing bought is worthless, and if (as in the case at bar) an offer to return has been made and refused. (Stone v. Frost, 61 N. Y. 614.)</p>

This action was brought against the Troy Iron and Steel Company, the original defendant, to recover damages for injuries received by plaintiff alleged to have been caused by said defendant’s negligence. The facts, so far as material, are stated in the opinion. Upon the whole evidence, or any reasonable construction of it, this action ought not to be maintained, and the judgment affirming the verdict should be reversed.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 12, 1895, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order overruling a demurrer to the complaint.</p> <p>• The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>A notary public is not a public officer within the meaning and intent of subdivision 5 of article 13 of the new Constitution, and, therefore, not subject to its provisions. (R. R. Co. v. McClure, 10 Wall. 511; Newell v. People, 7 N. Y. 9 ; Riggs v. Palmer, 115 id. 506; In re Livingston, 121 id. 94, 104; People ex rel. v. Potter, 47 id. 375, 379; People v. Smith, 47 id. 330, 336, 337; R. R. Co. v. Roach, 80 id. 339, 344; People ex rel. v. Angle, 109 id. 564, 568; O’Brien v. Mayor, etc., 139 id. 543, 588; Dibble v. Hathaway, 11 Hun, 571, 574, 575; Matter of Oaths of Attorneys, 20 Johns. 492, 493 ; Nostrand Case, 47 N. Y. 375, 381, 382; Smith v. Mayor, etc., 37 id. 518, 520; Hathaway Case, 71 id. 238, 243; Young v. Bryan, 6 Wheat. 146; Whitaker v. Masterton, 106 N. Y. 280, 282; Bonneil v. Griswold, 80 id. 128, 138; Dean v. M. E. R. R. Co., 109 id. 540.) If, however, the court is constrained to hold that a notary is a public officer within the constitutional provision, defendant cannot, under the statement of facts contained in the complaint, be subjected to its penal consequences. (Hartung Case, 22 N. Y. 95; Ratzky Case; 29 id. 124; O'Neil Case, 109 id. 251; Southwick v. Southwick, 49 id. 510; Sherill v. Christ Church, 121 id. 701; S. R. T. Co. v. Mayor, etc., 128 id. 510 ; Dash v. Van Kleecke, 7 Johns. 477.)</p> <p>The defendant has violated the provisions of section 5, article XIII of the Constitution, and the order and judgment should he affirmed. (Laws of 1892, chaps. 681, 683; Revised Const, art. 13, § 5, art. 15, § 1.) There being no ambiguity in the language used, the scope of the constitutional provision must be held to embrace the defendant. (Suth. Stat. Const.; People v. Lorillard, 135 N. Y. 285-289.) The section being clear and explicit, it is not allowable to go outside of the language used for the purpose of invoking any rule of construction which may be applicable to words of doubtful meaning. (Suth. Stat. Const. § 235; McCluskey v. Cromwell, 11 N. Y. 601; People v. Schoonmaker, 63 Barb. 44; Benton v. Wickwire, 54 N. Y. 226; Newell v. People, 7 id. 97; Story on Const. § 404.)</p>

This action was brought to set aside and have declared illegal and void eleven judgments recovered by defendant against the James Vick, Seedsman, Company. The facts, so far as material, are stated in the opinion. The act of giving the notes and obtaining judgments and executions thereon was substantially and purposely an attempt to evade the statute prohibiting transfers by corporations.

This action was brought to recover damages for a breach of an oral contract alleged to have been made by James McKechnie, defendant’s testator, to indemnify him in case of his indorsement of certain notes made by one Kingsbury. Upon the trial plaintiff called Kingsbury as a witness to prove the alleged promise.

■ Appeal from judgment of the General Term of the Supreme-Court in the third judicial department, entered upon an order made May 8, 1894, which affirmed a judgment in favor of plaintifE entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. The tax sale of 1877 was illegal and void when it was made.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made Juno 11, 1893, which modified and affirmed as modified a judgment in favor of plaintiff 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>The creditors of the Guardian Savings Institution are necessary and proper parties to this action, so far at least as relates to the distribution of the trust property disposed of. (Sherman v. Parish, 53 N. Y. 490.) Lynch and Develin were not guilty of negligence. (King v. Talbot, 40 N. Y. 76 ; McCabe v. Fowler, 84 id. 314; Clough v. Bond, 3 M. & Cr. 497 ; Story’s Eq. Juris. § 1272 ; Williams on Exrs. [6th ed.] 1922.) In their conduct Lynch and Develin acted with such prudence and diligence in the care and management of the trust estate as in general prudent men of discretion and intelligence would have employed in a similar matter and in the same manner in which they would have acted for themselves under similar circumstances and according to the ordinary usages of business. The appointment of an agent was proper. (Lewin on Trusts, 254; Williams on Exrs. 1922-1930 ; Perry on Trusts, § 409; Ivy v. Campbell, 1 S. & L. 341 ; Speight v. Gaunt, 9 App. Cas. 1; Chambers v. Minchin, 7 Ves. 193 ; Bacon v. Bacon, 5 id. 331; Davis v. Sterling, 1 R. & E. 66.) The circumstances of this case justified, if they did not absolutely require, the employment of an agent to perform the merely clerical duty of paying the creditors of the Guardian Savings Institution and the intrusting to him of moneys to make such payments. (Ex parte Griffin, 1 G. & J. 114.) The prudence and propriety of the conduct of the trustees must be judged in the light of existing circumstances and not by the result. (Crabb v. Young, 92 N. Y. 56; Lansing v. Lansing, 1 Abb. Pr. [N. S.] 288.) Plaintiff acquiesced in the conduct of the trustees. (Stuyvesant v. Hall, 2 Barb. Ch. 151; Stuyvesant v. Hone, 1 Sandf. Ch. 419; Truscott v. King, 6 Barb. 346; 2 Seld. 147; Hall v. Nelson, 23 Barb. 88.) The acquiescence of plaintiff in the course of conduct adopted by the trustees waived the necessity of any other course on their part and was pro tanto a modification of the provisions of the trust deed if such conduct were not in accordance with such provisions. (Bigelow on Estoppel, 663 ; Johnson v. Oppenheim, 55 N. Y. 280, 291; Ins. Co. v. Norton, 96 U. S. 234, 240; E. C. S, Bank v. Root, 48 N. Y. 292, 298; Sherman v. Parish, 53 id. 483, 492; Butterfield v. Cowing, 112 id. 486; Brier v. Stokes, 11 Ves. 319 ; Perry on Trusts, §§ 467, 850, 852, 870 ; Story’s Eq. Juris. § 1284; Herman on Estoppel, 954, 1360 ; Niven v. Belknap, 2 Johns. 573.) A waiver may be established by parol evidence, or by the conduct of the parties. (Add. on Cont. § 324; Prentice v. K. L. Ins. Co., 77 N. Y. 483; Brink v. H. F. Ins. Co., 80 id. 108-112; Ins. Co. v. Norton, 96 U. S. 234) The court below erred in charging Lynch and Develin with the rents of real estate, amounting to $18,746.25, received by Quinlan alone, and which never came into their hands. (Lewin on Trusts, 260; Perry on Trusts, §§ 334, 412, 415 ; Bruen v. Gillett, 115 N. Y. 10 ; Cocks v. Haviland, 124 id. 426; Townley v. S. B. Co., 35 S. C. 312; Littlescales v. Gascoyne, 3 Bro. C. C. 73; Riky v. Kennies, 1 L. & Gt. Sugd. 122; Williams v. Nixon, 2 Beav. 472; Gouldsworth v. Knight, 11 M. & W. 387; Ohio v. Guilford, 18 Ohio, 500.) The courts below erred in refusing to allow commissions to Lynch and Develin on the balance of moneys received and paid out by them over and above the sum of $183,530.18, upon which they had received commissions. (Meacham v. Sterries, 9 Paige, 398.)</p> <p>The trustees Lynch and Develin became liable for the misapplication of the trust fund by their co-trustee Quinlan by reason of their careless and negligent performance of the duties of their trust. (Story’s Eq. Juris. §§ 1267, 1275, 1278 ; Oliver v. Court, 8 Price, 127; Schenck v. Schenck, 1 C. E. G. 174; Dix v. Burford, 9 Beav. 409; Egbert v. Butler, 21 id. 560 ; Booth v. Booth, 1 id. 125 ; Lincoln v. Wright, 4 id. 427.) The transfer of the trust funds to Quinlan by his co-trustees rendered the trustees Lynch and Develin liable in law for the misapplication thereof. (Sadler v. Hobbs, 2 Brown’s Ch. 114; Cross v. Smith, 7 East, 256; Curtis v. Mason, 12 L. J. [N. S.] 442; Chambers v. Minchin, 7 Ves. 186 ; Keble v. Thompson, 3 Brown’s Ch. 112; Doyle v. Blake, 2 S. & L. 229; Cowell v. Gatcombe, 27 Beav. 568; Mendes v. Guedella, 2 J. & H. 259 ; Walker v. Symonds, 3 Swanst. 50 ; Clough v. Bond, 3 M. & C. 496 ; Brumridge v. Brumridge, 27 Beav. 5 ; Hanbury v. Kirkland, 3 Sim. 265 ; Moses v. Levi, 3 Y. & C. 359; Adair v. Brimmer, 74 N. Y. 531; Croft v. Williams, 88 id. 384; Earle v. Earle, 93 id. 104; Wilmerding v. McKesson, 103 id. 329; In re Cornell, 110 id. 351; Bruen v. Gillet, 115 id. 10 ; In re Myers, 131 id. 409 ; State v. Guilford, 15 Ohio St. 593; Deadrick v. Cantrell, 10 Yerg. 23 ; Thomas v. Scruggs, Id. 400; McMurray v. Montgomery, 2 Swanst. 374; Maccubbin v. Cromwell, 7 G. & J. 157; Edmunds v. Crenshaw, 14 Pet. 166; Wallis v. Thornton, 2 Brock. 434; Sparhawk v. Buell, 9 Vt. 41; Clark's Appeal, 6 Harris, 175 ; Ducommun’s Appeal, 5 id. 268 ; In re Evans, 2 Ashmead, 478.) The trustees Lynch and Develin were also liable for the rents of the premises collected by the agent of the three trustees, and by him paid over to Quinlan. (Perry on Trusts, § 402.) The trustees Lynch and Develin were also liable for that portion of the fund derived from sales of real estate, which did not go through the account of the trustees in the United States Trust Company. (Hill on Trustees, § 312.) There was no reasonable necessity which required Lynch and Develin to turn over to their co-trustee Quinlan the bulk of the trust fund, and leave it to be dealt with by him at his sole pleasure, and their action in so doing cannot be justified either upon principle or upon the facts of the case. (Lewin on Trusts, 290; Gill v. Atty.-Gen., Hardres, 314; Booth v. Booth, 1 Beav. 125 ; Atty.-Gen. v. Gleg, 1 Atk. 356; Macklow v. Fuller, Jacobs, 198; Hengst’s Appeal, 24 Penn. St. 413; Ducommun's Appeal, 5 Harris, 268; Hughlett v. Hughlett, 5 Humph. 474.) There is no estoppel in favor of the trustees Lynch and Develin. (Pom. Eq. Juris., § 1883; Rehden v. Wesley, 29 Beav. 213; Underwood v. Stevens, 3 Meriv. 712; Lincoln v. Wright, 4 Beav. 427.) The trustees are not entitled to commissions. (Cook v. Lowry, 95 N. Y. 103 ; Gordon v. Matthews, 30 Md. 235; Hermstead’s Appeal, 60 Penn. St. 423 ; McKnight v. Walsh, 24 N. J. Eq. 498 ; Warbass v. Armstrong, 10 id. 263; Lathrop v. Smalley, 23 id. 492; Blauvelt v. Ackerman, Id. 495; Norris’ Appeal, 71 Penn. St. 106 ; Stearby’s Appeal, 38 id. 525.)</p>

This action was brought for a construction of the will of David Clarke, deceased, and for the appointment of a receiver of certain premises in which defendant has a life estate under said will, for the purpose of renting the same and paying taxes out of the rents. The facts and portions of said will, so far as material, are stated in the opinion. , As between the life tenant and the remainderman the former should pay the taxes.

The nature of the action and the facts, so far as material, are stated in the opinion. The resolution of April 16, 1889, by the confirmation thereof, is conclusive in this action as to all the facts therein stated and adjudged. They are res judicata.

This was an action upon a promissory note given by the firm, doing business under the name of W. S. Alley & Co., to Elisha A. Buck, plaintiffs’ intestate. Said firm consisted of W. S. Alley, as general partner, Ferdinand T. Hopkins and Thomas H. Thomas, as special partners. The execution of the note by Alley in the name of the firm was admitted. All of the partners were made parties defendant, but only the special partners were served with process and appeared in the action.

This was an action for the foreclosure of a mortgage executed by Edward W. McDowell to John H. Whiteside and Timothy Howe, as trustees, and by them assigned to Andrew Williams. In 1886 Williams assigned said mortgage to Jane Ellis, plaintiff’s intestate, as collateral security to the extent of 85,000, which assignment remained in Williams’ possession until June 20,1888, during -which period he received payments from McDowell, who believed Williams to be. the absolute owner.

.Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 16, 1894,* which overruled defendant’s exceptions and ordered judgment in favor of plaintiff upon a verdict directed by the court. 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. It was not negligence per se to attempt to get off the moving train. (Filer v. N. Y. C. R. R. Co., 49 N. Y. 47; Morrison v. E. R. Co., 56 id. 306.) The fact that the train was moving, if at all (although this is not conceded) at the time Lewis was ordered to get off, would make no difference in this case. The moving train did not directly cause the injuries from which Lewis died.

This was an action for the specific performance of a contract for the purchase of real estate, and arose out of defendant’s refusal to complete his purchase on the ground that the title was not good and marketable, George Sloane, plaintiff’s testator, having derived title to the larger part of the premises in question through a judicial sale under a decree of the Circuit Court of the United States for the southern district of ISTew York in an action in equity wherein certain…

<p>H. by bis will gave to his wife the use of his dwelling house until his farm should be sold. It directed a sale of the farm as soon after his decease as it could be done without undue sacrifice, and a reservation out of the proceeds of the sale of $4,000 for the use of his wife during life, the same after her decease to be divided among his three children. The testator then gave to his children, within one year after the aforesaid sale of real estate and the reservation for the use of the wife, the whole of the balance of his property. Debts owing by the children were referred to as a part of their inheritance. One of the children died during the lifetime of the widow. In an action for the construction of the will, held, that the intent of the testator was to give to the children all of his estate except that given to the wife, and so it covered the trust fund as a remainder; that at his death the title vested in the three children, and the share of the one who died passed upon her death to her representatives.</p>

Harriot, deceased. The facts, so far as material, are stated in the opinion. The order of the General Term is appealable to this court. (Code Civ. Pro. §§ 190, 2570, 3333, 3334; Seaman v. Whitehead, 78 N. Y. 306.) The surrogate had no jurisdiction to make the ex parte order.

<p>As a general rule, when a motion is made to set aside or modify a judgment founded on matters in pais and dehors the record, the granting of the relief sought is discretionary.</p> <p>P., by his will, gave to his daughter F. §20,000 in trust, “the same to revert at her death without issue ” to the testator’s widow and son. In an action brought by the executors it was adjudged that the fund was payable to F. ; that she was, however, not at liberty to spend or waste the principal, but was bound to keep it securely invested for the benefit of the remaindermen. The money was paid over to F. pursuant to the judgment. The widow thereafter died, and her executor made a motion at the foot of the decree for an order requiring F. to give security for the fund. These facts appeared thereon: The whole fund having been hopelessly lost by unfortunate investments, F. insured her life for §20,000 to provide for its ultimate restitution. Her mother protested against this, asked F. not to continue the policies, and promised to forgive her the loss, and not call upon her for the fund. F. paid the premiums for a time, and then notified her brother of her inability to continue this, and suggested that he continue the policies; this he refused; she thereupon allowed §10,000 of the insurance to lapse. The court required F. to give security for the one-half of the fund payable to the brother, but refused the application as to the one-half going to the mother. F. complied with the order. On appeal by the executor, held, that there was no absolute legal right to the security sought, but the matter rested in the reasonable discretion of the Special Term; and that this discretion had been exercised in behalf of the moving parties as fully as was justified.</p>

This action was brought by plaintiff against defendant, as assignee, for the benefit of creditors of the firm of C. Burkhalter & Co., to recover the proceeds of the re-sale ‘of certain goods alleged to have been fraudulently purchased from plaintiff by said firm.

The nature of the action and the facts, so far as material, are stated in the opinion. The widow had no title as widow under the policy in suit, and could not as widow retain a judgment granted her as administratrix. (Drake v. Pell, 3 Edw. Ch. 251; Tillmann v. Davis, 95 N. Y. 25; Code Civ. Pro. § 1814; Sheldon v. Hoy, 11 How.

The nature of the action and the facts, so far as material, are stated in the opinion. The General Term reversed the judgment on the single ground that neither Alvin Cyrenius nor his estate ivas the owner of the policy, or had any cause of action under it, but that it belonged to George A. Cyrenius; this is erroneous. (Code Civ. Pro. §§ 113, 449; Considerant v. Brisbane, 22 N. Y. 386; Pitney v. G. F. Ins. Co., 65 id. 6; Kerr v. T. U. M. L. Ins.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 18,1895, which affirmed an order of Special Term denying a motion by defendants for the order sending back the decision of the referee herein with instructions to rule upon certain proposed findings of fact and conclusions of law as requested by defendants, or to vacate said report.</p> <p>This action was brought to enjoin the defendant from operating its elevated railroad in Trinity place, in the city of New York, in front of plaintiffs premises.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Chapter 688 of the Laws of 1894 did not operate to relieve the referee from a judicial duty, the right to the performance of which had already accrued, in respect to the decision of a case on trial before the statute was passed. (Dash v. Van Kleek, 7 Johns. 499 ; Benton v. Wickwire, 54 N. Y. 226; N. Y. & O. M. R. Co. v. Van Horn, 57 id. 477; People v. O'Brien, 111 id. 1; People v. Carnal, 6 id. 463; Long v. Stafford, 103 id. 275, 282; Spalding v. Congdon, 18 Wend. 543; Ryghtmyre v. Durham, 12 id. 245; Wood v. Keyes, 6 Paige, 478; Campbell v. Meiser, 4 Johns. Ch. 344; Snow v. Carpenter, 54 Vt. 17; Topley v. Goodsell, 122 Mass. 177; Paige's Estate, 50 Cal. 40; Richardson v. Green, 130 U. S. 104; Lawrenee v. Hodgson, 1 Y. & T. 372; Freeman v. Tranah, 12 C. B. 415.) The provision of the Code is mandatory. (Code Civ. Pro. § 1023; Goetling v. Rihler, 33 Hun, 500.)</p> <p>Chapter 688 of the Laws of 1894, repealing section 1023 and amending sections 993, 1022 and 1337 of the Code of Civil Procedure, is an act affecting the remedy, and, as such, applies to pending actions. (Eggers v. M. R. Co., 27 Abb. [N. C.] 463, 478; Shepard v. M. R. Co., 131 N. Y. 215; Southwick v. Southwick, 49 id. 510, 517; Kelly v. Brownlow, 22 J. & S. 129; Wright v. Hale, 6 H. & N. 227; Kimbray v. Draper, L. R. [3 Q. B.] 160; Larkin v. Saffarans, 15 Fed. Rep. 147; Steubing v. N. Y. E. R. Co., 138 N. Y. 658, 681.) The order sought to he reviewed does not affect a substantial right and is not appealable to this court. (Arthur v. Griswold, 60 N. Y. 143; Whitney v. Townsend, 67 id. 40; Taylor v. Roat, 48 id. 687.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made May 8, 1894, which affirmed a decision of the respondent, as comptroller of the state of New York, imposing an assessment upon the capital employed by the relator, a foreign corporation, in this state, and quashed a certiorari to review the same.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The comptroller erred in imposing a tax on so much of the capital of the relator as was employed in its manufacturing business. (People ex rel. v. Campbell, 144 N. Y. 166 ; Comm. v. L. I. & C. Co., 129 Penn. St. 346; Comm. v. Mann Co., 150 id. 64; Comm. v. P. I. & S. Co., 156 id. 500; Comm. v. J. C. Co., Id. 507; Comm. v. S. F. B. Co., Id. 512; Comm. v. N. O. Co., Id. 516; People v. H. S. M. Co., 105 N. Y. 76.)</p> <p>The appellant is not a manufacturing corporation or company wholly engaged in carrying on manufacturing under the provisions of the New York corporation tax laws, and is subject to taxation upon the whole amount of capital employed in this state. (People ex rel. v. Fire Comrs., 73 N. Y. 437.) The burden of proof was on the appellant to establish that it came within the statutory exemption, and to show that it was incorporated only for the purpose of manufacturing and transacting a business incident thereto. (People ex rel. v. Campbell, 144 N. Y. 166 ; C. B. Co. v. City of New Orleams, 99 U. S. 97; Knapp v. O'Neill, 46 Hun, 318; Sherrill v. Hewitt, 36 N. Y. S. R. 321; Butler v. City of Oswego, 56 Hun, 358.) The tax assessed against the corporation by the comptroller was not erroneous, and there was no overvaluation made in the appraisal made by him. (People ex rel v. Wemple, 131 N. Y. 64; People ex rel. v. Wemple, 138 id. 583; People ex rel. v. Wemple, 133 id. 323; People ex rel. v. Wemple, 138 id. 587; People ex rel. v. A. C. & D. Co., 129 id. 558 ; People v. S. C. O. Co., 131 id. 64; People v. S. T. C. Co., 133 id. 323.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 14, 1893, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>This case is reported on former argument, 143 N. Y. 271; on re-argument, 144 id. 642.</p>

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

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