Volume 146 — New York Reports

<p>By the third clause of the will of D. she directed the sale of certain of her real estate, and after payment of a bond described, that the balance of the proceeds be deposited with plaintiff, a trust company, which was directed to hold and invest the same and pay to E. the income thereof during his life. In case of the death of E. without lawful issue the tes- • tatrix provided as follows: “I order and direct that the principal of said trust fund shall form part of my residuary estate, and the same be disposed of as the same is hereinafter disposed of.” By other clauses, down to the seventh, separate and distil? were made to a devisee named for life with remainder to others .a m reference to each, in case of lapse or failure to take, it was proviued that the devise should fall into and be disposed of as part of the residuary estate. By the seventh clause the testatrix directed that “all the rest, residue and remainder” of her estate be sold, and out of the proceeds the executors were directed to pay certain legacies specified. A trust fund was also created for the life of a beneficiary named, with the direction that on her death the trust fund should fall into and be disposed of as part of the residuary estate. By the eighth clause it was provided that after the payment of tfie before-mentioned legacies the executors should pay “out of the residue of the proceeds of sale ” of the “ residuary estate ” certain other legacies specified, and then the clause directed the executors to pay over “all the rest and residue ” of the “residuary estate” not otherwise disposed of to certain residuary legatees named. In an action for the construction of the will it appeared that the real estate specified in the third clause was sold, the bond therein referred to paid and a balance of the purchase money deposited with plaintiff as directed; that the property cf the testatrix, other than that specified in the clause preceding the seventh, was sold, but that nothing was left of the avails to pay the specific bequests in the eighth clause. Held, that the ‘ ‘ residuary estate ” referred to in the third clause was that which the testatrix assumed would remain after payment of the specific legacies referred to in the seventh and eighth clauses, and which would go to the residuary legatees; and so, that said residuary legatees were entitled to the fund.</p>

This action was brought by three of the children of John Hirsh, deceased, to recover the proceeds of a policy or certificate of membership in the Ancient Order of United Workmen, of which he was a member, which was made payable to ’Clara Auer, a sister of said Hirsh. The facts, so far as material, are stated in the opinion.

This was an action upon a promissory note. The facts, so far as material, are stated in the opinion. This action is not prematurely brought. (Herrman v. M. Ins. Co., 81 N. Y. 188; Westcott v. Thompson, 18 id. 145 ; Ward v. Whitney, 8 id. 446 ; Savage v. H. Ins. Co., 52 id. 502 ; Rohrbach v. G. Ins. Co., 62 id. 63 ; O'Brien v. C. F. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The rule of damages applied by the trial court was an erroneous one. All that plaintiff could recover was the profits she would have made had defendant carried out his contract. There was no evidence in the case from which such profits could be computed, and hence plaintiff should have recovered only nominal damages. (Appleby v. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. Such a construction should be given to the will as to prevent partial intestacy. (2 Redf. on Wills, 442; Schutt v. Moll, 132 N. Y. 122; Vernon v. Vernon, 53 id. 351; Provost v. Calyer, 62 id. 210; Byrnes v. Baer, 86 id. 210; Van Derpoel v. Loew, 112 id. 167.) The will should be so construed as not to disinherit an heir.

This is an action by certain judgment creditors of the firm of Falk Brothers & Co. to set aside, as being void and fraudulent as to them, a certain transfer of property, which had been made by the judgment debtors to the three defendant banks.

The facts, so far as material, are stated in the opinion. The actual value at the time of the destruction should be paid to the owner. Every presumption is in favor of compensating the owner where property is taken by the state. (Const, of N. Y. art. 1, § 6; In re Jacobs, 98 N. Y. 98.) The proper measure of damages was the actual value of the animals as affected by and liable to communicate tuberculosis on account of being brought in contact with other animals.

On defendants’ demurrer to the complaint. This action is to compel the defendant, the Rochester Gas and Electric Company, to issue to the plaintiff four hundred and eighty thousand dollars, par value, of its paid-up stock; or, in default thereof, that the defendants he required to pay to him the par value thereof.

The facts, so far as material, are stated in the opinion. The repeal of the Business Act of 1875, and of all provisions of law requiring a certificate of the payment of capital stock to be filed in any public office by the acts of 1892, amending the General Corporation Act and the Stock Corporation Act, bar this action.

<p>Appeal from order of the General Term of the Supreme-Court in the second judicial department, made December 12, 1894, which affirmed an order of Special Term denying a-motion by the relator for a writ of peremptory mandamus. The facts, so far as material, are stated- in the opinion.</p> <p>The discretion which’ the court has to grant or refuse the' writ of mandamus is a-legal, not an arbitrary discretion, and- its exercise is reviewable in the Court of Appeals. (People ex rel. v. Common-Council, 78 \N. Y. 56 ; Gilroy v. Smith, 23 N. Y. S. R. 5.) This appeal is properly heard as- a motion. (People v. Jeroloman, 139 N. Y. 16, 17.) The use of the writ to compel recognition of a public officer whose title is clear and is conceded by the officer defacto,, and whose functions require-others to act with him, is approved. (People v. Kilduff, 15 Ill. 493; People ex rel. v. Sheffield,. 47 Hun, 482; Rex v. Whitwell, 5 Term R. 85, 86.)</p> <p>In insisting on the issuance of a peremptory writ of mandamus, the relator admits-that the denials are true; and if the denials are true, he is-not entitled to the peremptory writ. Even if the statements-were true, the motion for a peremptory writ could not be granted, because an issue of fact is raised. (People ex rel. v. Fairman, 12 Abb. (N. C.) 252; People ex rel. v. Cromwell, 102 N. Y. 477; People ex rel. v. Bd. of App., 64 id. 627; People ex rel. v. Bd. Suprs., 98 id. 230; People v. Richards, 99 id. 620.) The issuance of a peremptory writ of mandamus lies wholly in the discretion of the court, and an. order denying the same is not appealable to this court unless it is shown on the moving papers and counter affidavits that the relator has a clear and undisputed right and has no other .adequate remedy. (Clark v. Miller, 54 N. Y. 528.)</p>

Appeal also from an order of said General Term, made October 16, 1894, which denied a motion to vacate said order and the judgment entered thereon. The facts, so far as material, are stated in the opinion. The defendant’s contention that there was an account stated and that this is a good defense is erroneous.

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 14, 1895, which reversed an order of Special Term made in habeas corpus proceedings discharging the appellants from the custody of Z. Taylor Emery, health commissioner of the city of Brooklyn.</p> <p>The relators alleged in their petition that they were imprisoned, or restrained of their liberty, at their house in the city of Brooklyn, not by virtue of any judgment or process issuing from any court, but upon the order and direction of the respondent, the commissioner of health of the city of Brooklyn. They alleged as the cause for their imprisonment, which was effected by a detail of policemen to watch the premises, that they had refused to permit themselves to be vaccinated They also alleged that they had been exposed to no contagion and were not afflicted with any disease, contagious or otherwise. In the return made by the commissioner of health to ¡the writ of habeas corpus issuing upon the the relators’ petition, it is stated that the relators were placed under quarantine • by his orders and by virtue of the authority vested by law in him to take such precautions as are necessary for the protection of the public health against smallpox; that the relators were detained in quarantine by reason of their refusal to permit themselves to be vaccinated; that for several months previously smallpox had been present to an alarming extent in the city of Brooklyn and had been epidemic in that city, and that the utmost precaution and most thorough preventive measures were necessary in order to prevent the spread of the disease beyond control. It is then alleged in the return, as a well-established scientific fact, that vaccination is a preventive of that disease. The health commissioner then proceeds to state as follows : “ That, as I was informed and believed, before ordering the quarantine to be placed upon the said premises and that said persons be detained therein, the said William II. Smith (one of the relators) is the proprietor of an express delivery business, and that the said Cummings (the other relator) is employed by him in said business, and that they are both actively engaged in the prosecution thereof in the cities of New York and Brooklyn and especially in Greenpoint and the eastern district of said city of Brooklyn, which latter has been one of the worst infected centres of said city. That said business is of a general nature, and may include the carrying of trunks, bedding, furniture and numerous other articles which may come from infected centres and be infected with the germs of smallpox; and it became at once apparent to me that the said Smith and Cummings were unusually exposed to such contagion, and that they might be seized therewith and by communication with others spread the same; and that it was, therefore, of special importance that they should be vaccinated at once.” The return then goes on to state that a quarantine was ordered to be placed upon the premises and the persons contained therein, until they consented to be vaccinated, and that such measures were taken in order to protect the citizens of Brooklyn, in the belief that if the said Smith and Cummings were permitted to continue in their said business without being so vaccinated they might be the means of most serious fatal consequences to other citizens. The return alleges that there had been at least twenty-eight cases of smallpox in and about the 17th ward of the city and that a proclamation of great and imminent peril had been made by the mayor and the president of the medical society of the county of Kings. The proclamation, to which reference is made in the return, is annexed and refers to the measures and acts declared to be necessary by the commissioner of health and approves of them, and declares that the peril from an impending epidemic of smallpox shall be deemed to exist, etc. The acts and measures, which that declaration approves, are stated over the signature of the commissioner of health, who declares them necessary to be taken for the preservation of the public health from the impending pestilence of smallpox. They are stated to be,' “ First: Thorough and sufficient vaccination of every citizen, who has not been successfully vaccinated within such period of time as, in the judgment of the commissioner of health, renders such person immune, should be procured. Second: Wherever any person in said city shall refuse to be vaccinated, such person shall be immediately quarantined and detained in quarantine until he consents to such vaccination.” The relators demurred to the return and, after a hearing, were discharged from the commissioner’s custody. They appealed to this court from an order of the General Term which reversed the order, etc., discharging them.</p> <p>The demurrer to the return only admits the facts that are stated in that document and not all the recitals contained in the papers annexed to it. (Russell v. Mayor, etc., 2 Den. 474.) Under the statutes applicable to this case the questions whether the overruling necessity exists, and whether the remedy is appropriate, are judicial ones to be passed upon by the courts whenever a citizen challenges the right of the commissioner to interfere with his person or property. (People ex rel. v. Board of Health, 140 N. Y. 1; Young v. Flower, 22 N. Y. Supp. 332.) The other statutory provisions referred to by the respondent are plainly insufficient to justify his action in restraining the appellants. (Laws of 1893, chap. 661; Laws of 1888, chap. 583.) The policy of the law of this state lias not been to make vaccination compulsory upon the people. (Laws of 1893, chap. 661, § 118.)</p> <p>The provisions of the charter of Brooklyn make the commissioner of health, the mayor and the president of the Medical Society of Kings County, the judges of the existence of great and imminent peril to the public health of the city by reason of impending pestilence. (Laws of 1888, chap. 583, § 5; Harrison v. Baltimore, 1 Gill, 264; Brown v. Purdy, 22 J. & S. 109.) They having thus declared the existence of this great and imminent peril, the statute made it the duty of the commissioner of health to take, do and cause to be done, such measures and acts as he in good faith declared the public safety and health to demand, and the mayor and president of the medical society apjiroved in writing. (Laws of 1888, chap. 583, § 5.) The statutes make the commissioner of health, whom they charge with the duty of carrying out and doing these measures and acts, the sole judge of what means and subordinate officers shall be employed in the performance of these duties. (Wood v. Moorehouse, 45 N. Y. 368, 376; People ex rel. v. Board of Health, 140 id. 1.) Concurrently with the charter provisions, the general law relating to local boards of health requires the commissioner to provide vaccinnation for all who need it in the event of an actual epidemic of smallpox; and at all times to require the isolation of persons exposed to contagious or infectious diseases. (Laws of 1893, chap. 661, § 24.) The legislature had the power to confer the authority and impose the duties conferred and imposed by these acts. (Kerrigan v. Force, 68 N. Y. 381; People v. Durstan, 119 id. 569 ; 37 id. 661, 670; Health Dept. v. Knoll, 70 id. 530, 536; R. R. Co. v. Husen, 95 U. S. 465, 471; Lawton v. Steele, 119 N. Y. 226 ; Morgan v. Louisiana, 118 U. S. 455, 462, 464; People ex rel. v. Warden, etc., 144 N. Y. 529 ; People v. Ewer, 141 id. 129; Young v. Flower, 22 N. Y. Supp. 332 ; M. S. P. & S. R. R. Co. v. Milner, 57 Fed. Rep. 276; Seguin v. Schultz, 31 How. Pr. 398.) Hot only was there a clear case for the exercise of the power and performance of the duty devolved upon the commissioner of health by these statutes, but he exercised the power and performed the duty in a lawful and discreet manner in the case of the relators. (Const, art. 1, § 6; 37 N. Y. 661; Murray v. H. L. & I. Co., 18 How. [U. S.] 272; People ex rel. v. Keeler, 99 N. Y. 463, 479 ; Happy v. Mosher, 48 id. 313; Henderson v. Mayor, etc., 92 U. S. 260; Miller v. B. & M. R. R. Co., 70 N. Y. 223.) The judge at Special Term should have dismissed the writ and remanded the relartors to the custody of the commissioner to be detained by him for such portion of the period of sixty days fixed by the proclamation as he in his discretion might deem necessary. (Laws of 1886, chap. 533, § 5; People v. Cavanagh, 2 Park. 650 ; People v. Nevins, 1 Hill, 154; People v. Cassell, 5 id. 164; People ex rel. v. Liscomb, 60 N. Y. 589, 605; People ex rel. v. Jacobs, 66 id. 8; People v. Baker, 89 id. 460; In re Parker, 5 M. & W. 31; In re Shuttleworth, 9 Ad. & El. 651; Ex parte Dixon, 1 Abb. [N. C.] 118; Ex parte Lamont, 11 id. 120 ; Code Civ. Pro. § 2039 ; People v. Grant, 111 N. Y. 584; People v. McEwen, 67 How. Pr. 105.)</p>

Cross-appeals from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made the second Monday of May, 1894, which modified, and affirmed, as modified, a decree of the surrogate of Putnam county settling the account of Julia L. Butterfield, as executrix of the last will and testament of Frederick P. James, deceased. Upon the accounting of the executrix of Hr.

The writ required the board of supervisors of Steuben county to levy upon the taxable property of the county the sum of $1,840.03, part of the expenses incurred by the town of Addison for bridge purposes during the year preceding November 1, 1893.

The -action was brought by the executors of the will of ¡Richard H. Campbell, deceased, for a judicial settlement .of their accounts, and for instructions in reference to certain accumulations in their hands as trustees. An appeal from the interlocutory judgment was taken by the infant defendant, ¡Rosalie Coe Campbell, to the General Term, where the judgment of the Special Term was affirmed.

Miner, deceased. The facts and the portions of the will, so far as material, are stated in the opinion. The testator died intestate as to the general residue of his estate.

<p>Appeal from judgment of the General Term- of the Supreme Court in the first judicial department, entered upon an order made November 19, 1894, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of Special Term overruling a demurrer to the complaint.</p> <p>The complaint in this action in substance alleged that Margaretha Metzger died leaving a will which was duly proved in the county of New York, where she resided, and that, letters testamentary were issued to the defendant, Joseph Morette; that on or about December 5, 1892, said defendant caused notice to creditors to be published to present their claims on or before June 5, 1893; that on November 18, 1892, jdaintiff presented to defendant a' duly verified claim and that defendant acknowledged the receipt thereof; that-said claim was as follows, viz.:</p> <p>“ City and County of New Y obk, ss. :</p> <p>“ Marie Schütz, being duly sworn, says that she resides at No. 236 Sixth avenue, in the city of New York, and has a claim for the sum of one thousand dollars ($1,000) against the estate of Margaret Metzger, deceased, formerly a resident of No. 238 Sixth avenue, which she hereby presents to the executor of the will of said testatrix and demands payment thereof, the said claim growing out of the following facts, to-wit: “At New York city and at the city of Saratoga, in the state of New York, this deponent rendered services to the said testatrix at her request, for which she promised and agreed to pay, which said services were so rendered to her at different-times during, a period of. eight years last past, consisting of nursing and attendance both by day and at night, and the said services were fairly and reasonably worth the sum of one thousand ($1,000) dollars, no part of which has been paid.</p> <p>“M. SCHÜTZ.</p> <p>“ Sworn to before me this 18th ) day of April, 1894. I</p> <p>“ Francis W. Judge, Jb.,</p> <p>“ Notary Public, N. 7. OoP</p> <p>It was then alleged that although said defendant has had a. reasonable opportunity for examination into the validity and fairness of the claim so presented, he has not disputed or rejected the same, and refuses to pay the same, or any part thereof.</p> <p>Judgment was demanded against the defendant for the sum of $1,000, with interest thereon from February 1, 1892,. besides costs.</p> <p>The complaint was demurred to as not stating facts sufficient to constitute a cause of action.</p> <p>Admitting that the theory of the decision is sound, to wit, than an executor’s silence as to a claim presented to him is irrevocable and in itself constitutes a cause of action, the complaint is still demurrable for failure to allege such allowance or admission. (Emory v. Pease, 20 N. Y. 62 ; 2 Chitty Pl. 90; Lent v. N. Y. & M. R. R. Co., 130 N. Y. 504.) The statement of claim as presented to the executor, and set out in full in the complaint, is sufficient to raise the question decided on this demurrer, i. e., whether an undisputed claim must be deemed admitted irrevocably. (Code Civ. Pro. § 2718; Bullin v. Johnson, 111 N. Y. 204.) This action is against the executor in his representative capacity and the judgment binds the assets of the estate. The effect of the decision of the General Term is that if the executor was silent as to the claim, no defense can now be offered. (Glaucer v. Fogel, 88 N. Y. 434; In re Strickland, 1 Conn. 435 ; Lockwood v. Thorn, 11 N. Y. 170.) The theory of the statutory arrangements for the winding up of estates does not require any such rule as is claimed in this case. (Code Civ. Pro. § 2718: In re Whitney, 39 N. Y. S. R. 899; Butler v. Johnson, 111 N. Y. 204.)</p> <p>A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no. cause of action whatever. (Marie v. Garrison, 83 N. Y. 14.) An unrejected claim acquires the character of a liquidated and undisputed debt against an estate. (Lambert v. Craft, 98 N. Y. 342; Code Civ. Pro. § 1822; Hoyt v. Bennett, 50 N. Y. 538; 32 Hun, 466; 98 id. 342.) Production of vouchers, verification of claim or presentation of affidavit of the claimant, stating what is justly due, that no payment has been made thereon and that there are no offsets against the same, is needless unless exacted by the executor. (Code Civ. Pro. § 2718; Gansevoort v. Nelson, 6 Hill, 389; Budd v. Walker, 29 Hun, 344.) The acquiescence of the parties must depend upon the special circumstances of each case in general. When a party indebted upon an account receives and retains it beyond such time as is reasonable undertime circumstances, and according to the usage of the business, for examining arid returning it, without communicating any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated. Signature to the account' or express admission is not necessary. (Knickerbocker v. Gould, 115 N. Y. 533; Lockwood v. Thorne, 18 id. 285; Champion v. Joslyn, 44 id. 653 ; Stenton v. Jerome, 54 id. 480; Quincy v. White, 63 id. 370; Guernsey v. Rexford, Id. 631.)</p>

The nature of the action and the facts, so far as material, are stated in the opinidn. The defendant has no right to interpose, as a defense, want of authority in its officers to make the contract in question. (W. A. Co. v. Barlow, 63 N. Y. 62, 70; R. W. Co. v. McCarthy, 6 Otto, 267 ; Woodruffs.

This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. The facts, so far as material, are stated in the opinion.

This action was brought to recover from the defendant certain securities which had been deposited by the Madison Square Bank with the St. Nicholas Bank and the proceeds of the securities, which the… Held: also, certain collateral securities, taken upon loans made upon notes of the Madison Square Bank and by agreement they or their proceeds should be applied to any other obligations of that bank.

This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant, a street railway corporation. The plaintiff, at the time a boy of eleven years and four months of age, was run over by one of the cars of defendant upon St. Joseph street in the city of Bochester, 1ST. Y., upon the 23rd day of February, 1892, in consequence of which his leg was crushed so as to require amputation.

This action was brought to have the fifth paragraph of the will of Jennie Sawyer, deceased, declared void, and probate of said will, so far as it relates to said paragraph, canceled and revoked, and that William Cubby, the legatee named therein, be adjudged to have failed to perform the conditions of said bequest, and that the executors be enjoined from paying any portion of said estate to said Cubby.

The nature of the action and the facts, so far as material, are stated in the opinion. The principle that money paid under a valid judgment cannot be recovered back, though not justly due to the judgment creditor, only applies to cases in which the judgment is res judicata upon the questions sought to be raised in the second suit. (Cobbey on Replevin, §§ 1105, 1111, 1118, 1162, 1163; Wells on Replevin, § 494 ; Fleet v. Lockwood, 17 Conn. 240 ; F. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. A complete defense for the three individual defendants, the three sureties in the bond sued on, is found in the fact that the complaint does not charge any default of the defendant company, the principal in the bond, as to any matter for which the securities in the bond became thereby bound.

<p>Appeal by defendants, Burns and Parker, from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 8, 1893, which affirmed a judgment in favor of plaintiffs- entered upon a decision of the court on trial at Special Term.</p> <p>This action is continued here under the above title of the executors of Anne A. Morss against Edward Burns and Charles W. Parker, impleaded with others. Miss Morss, the original plaintiff, died subsequent to the appeal of the above defendants to this court. The action was commenced to foreclose two mortgages upon the same property, executed by Thomas B. Hawley and wife to the deceased, Anne A. Morss, the first one having been executed on the 10th of June, 1879, to secure the payment of $4,000 and interest in one year, and the other on the 26th of October, 1881, to secure the payment of §3,000 and interest in one year thereafter. The defendants Burns and Parker were made parties to the action of foreclosure and the complaint contained the usual allegations against them, -as having or claiming to have some interest in or lien upon the mortgaged premises or some part thereof, which had accrued subsequent or was subject to the lien of the plaintiff’s mortgages. The defendants answered the complaint and among other things denied that the mortgagors had any right, title or interest in or to the land described in the mortgages at the time of the execution thereof, and also it was alleged that by virtue of the judgment in another action to which the plaintiff in this action had been made a party, all her rights under these mortgages had been barred and foreclosed, and these premises had been sold under and by virtue of the judgment in such other action discharged from any claim, charge or lien of the plaintiff’s alleged .mortgages or either of them. The defendants also denied that they had or claimed any interest in or lien upon the premises as accruing subsequently to the lien of the plaintiff’s mortgages. The action upon these issues was once tried and resulted in a judgment dismissing the complaint in regard to the defendants Burns and Parker, which judgment on appeal the General Term reversed and granted a new trial of the action, and upon such new trial judgment of foreclosure was obtained against all the defendants, which judgment has been affirmed by the General Term and the defendants Burns and Parker have appealed here.</p> <p>The facts in the case are somewhat complicated, but a statement of some of them is necessary in order to clearly understand the questions involved herein.</p> <p>It appears that in September, 1870, the defendant Thomas B. Hawley was the owner of a large amount of land in the county of Westchester, which he was desirous of cutting up into lots and selling off at remunerative prices. A large portion of this land he had obtained from one Hawley D. Clapp* who had conveyed the same to him in or about September, 1870. M'r. Hawley and his wife had given back to Mr. Clapp a purchase-money mortgage for $150,000, dated September 24, 1870. This mortgage was duly recorded October 11, 1870. Mr. Olapp and Mr. Hawley were both interested in this scheme for cutting up the land into villa plots, and in order to improve the prospects of the sale of the balance it was determined to convey to the General Theological Seminary of the Protestant Episcopal Church in the United States, free and clear of all incumbrances, a tract containing 30 acres of the land above mentioned. Accordingly, and on or about the 10th of October, 1870, Mr. Olapp duly released the 30 acres intended for the seminary from the lien of his $150,000 mortgage. This release was given to Mr. Thomas B. Hawley, and was absolute and full. On October 15, 1870, Mr. Hawley and wife conveyed this 30 acres thus released, to the above-named seminary. This deed stated that it was granted upon the condition that the land should be used and kept by them, the parties of the second part and their respective successors, for the purpose of a theological seminary, and the deed contained a covenant on the part of the seminary that it or its successors would, within five years from the date of the deed, erect buildings upon the premises for the purpose of a theological seminary, or that, in default of so doing, the seminary would, upon request, re-convey the premises to Thomas B. Hawley, one of the parties of the first part, his heirs or assigns, free, clear and discharged from any former or other gift, grant or conveyance thereof by the seminary, and from any lien or incumbrance suffered by them or either of them.</p> <p>While the 30 acres or seminary tract was still owned by and in possession of the seminary, and on April 24, 1871, Thomas B. Hawley and Augusta W. Hawley, his wife, and Hawley D. Olapp, the mortgagee of the $150,000 mortgage, made and executed what is termed the tripartite agreement, which was duly recorded, by which it was agreed that the land covered by the $150,000 mortgage, together with other land owned by the Hawleys (“ except that portion of the farm secondly above mentioned to which the General Theological Seminary of the Protestant Episcopal Church of the United States may retain title ”), should be sold by the Hawleys “ with all proper and judicious dispatch,” in such lots and sizes as should be agreed upon, and of the purchase money arising from the sales of such lots Mr. Olapp was to have fourteen-twenty-fourtlis and the other parties ten-twenty-fourths. Provision was made for the taking of security for a portion of the purchase money not paid in cash, and other provisions, not here particularly material, were contained in the agreement.</p> <p>Things remained in this condition until the 15th of June, 1871, when Thomas B. Hawley and wife conveyed to one B. M. Waters certain other portions of the laud covered by this $150,000 mortgage, including the so-called lots 70 and 71, and on that day Hawley D. Clapp released from the lien of Ms mortgage all of the premises thus conveyed by Hawley to Waters, with the exception of lots 70 and 71, which were not released and were conveyed to Waters subject to the lien of the Clapp mortgage.</p> <p>On the 5th of May, 1873, the seminary having up to that time failed to build, conveyed the land back to Hawley, and that conveyance was recorded on the 23rd of September, 1875, and on the 9tli of June, 1879, by deed recorded on that day, Mr. Waters reconveyed to Mr. Hawley all of the lots which Hawley had conveyed to him. Hawley was thus on June 9, 1879, seized of all the property which had been conveyed to the seminary and to Waters, and that property when the first of the two mortgages to plaintiff’s testatrix was given stood in his name freed from the lien of the $150,000 mortgage, except the two lots Mos. 70 and 71 above spoken of. In the meantime, and about October, 1874, Mr. Clapp began an action against Hawley and others to foreclose the $150,000 mortgage, and "in that complaint it was stated that the property deeded to the seminary and to Waters (except lots 70 and 71) had been released from the lien of the mortgage, and the complaint prayed for a foreclosure in regard to all the other land covered by the mortgage. Judgment was entered for the plaintiff in 1875, which provided for the sale of all the land described in that mortgage, excepting the premises which had been released from the mortgage by Clapp and then conveyed to the seminary and to Waters. The judgment in that action was subsecpiently reversed by the General Term and a new trial ordered, and upon appeal to this court from the order granting the new trial the order was affirmed. The case is reported in memorandum in 69 M. Y. 625. It was reversed on the ground that the tripartite agreement above mentioned had taken the place of the §150,000 mortgage and the mortgagee’s rights were to be governed by that agreement.</p> <p>On the 28th of July, 1880,-Mr. Clapp having in the meantime died, his executors commenced an action against Thomas It. Hawley and others for the specific performance of the provisions of the trij^artite agreement above mentioned and to obtain a sale of the property included in that agreement, including lots 70 and 71.</p> <p>The complaint in that action described the property to be affected by it, including lots 70 and 71, but excluding from its description the 30-acre Seminary tract and the other land that had been once conveyed to Waters'. Anne A. Morss, the plaintiffs’ testatrix, was made one of the defendants in that action (the second mortgage to her not then having been given), and she appeared in it and answered the complaint and set up the releases of the land from the §150,000 mortgage, and upon the trial of the action on the 12th of March, 1881, she put in evidence such releases, and the complaint was as to her dismissed by consent and her name thereafter omitted from the title and from the findings of fact and from the final judgment. The defendants Hawley having appeared in the same action and answered and gone to trial, the case was tried and judgment rendered, which judgment, instead of excluding the so-called 30-acre Seminary tract, directed that such tract should be sold with the rest of the property described in the complaint. The record thus showed a complaint to compel the Hawleys to sell certain land in which the Seminary tract was excluded, the dismissal of the complaint by consent as to Miss Morss, the appearance of the Hawleys in the action, their answer and their taking part in the trial, and then a judgment following- the trial in which the Seminary tract is directed to be sold with the rest of the land described in the complaint. The record does not affirmatively show an amendment of the complaint so as to include the Seminary tract within its prayer tor judgment and sale, nor does the record show an affirmative and formal consent on the part of the Hawleys to the sale of such tract under the judgment. But there is no evidence in the record of any objection being taken by any of the parties to this inclusion of the Seminary tract, and all the parties interested in the question, with the exception of Miss Morss, were present at the trial and taking part therein. Ho exception is taken to the judgment, or to any subsequent proceedings thereunder, by the Hawleys or Clapo so far as the record shows. Pursuant to the judgment entered the referee appointed therein sold, on the fifth of August, 1889, the premises known as the Seminary tract to the defendant Burns, and the lots Hos. 70 and 71 to the defendant S. Webber Parker. The rest of the land which had been conveyed by Hawley to Waters, and back again by Waters to him, and which was covered by the 'mortgages to the plaintiffs’ testatrix herein, was excluded from this judgment. The history of the title to that property is this: Subsequent to the re-conveyance of the lots by Waters to Mr. Hawley, and in May, 1880, he conveyed those premises, to Charles B. Collins, who on that day conveyed the same to Angusta B. Hawley, the wife of Thomas B. Hawley, in whose name the title stood when the Hawleys executed the second mortgage to plaintiffs’ testatrix in October, 1881. In August,. 1888, Mrs. Hawley died intestate, seized of this property, leaving her surviving her husband and three sons. By deed from Thomas E. Hawley to his son E. W. Hawley, and by E. W. Hawley, in his own interest and as guardian for his brothers, and on the 27th of January, 1890, the property was conveyed to S. Webber Parker, one of the defendants herein. S. Webber Parker, on February 1, 1890, conveyed these lots, to Charles Warren Parker, his son, one of the defendants herein, “subject to all liens and incumbrances now existing on the several pieces of property, or any of them.” It will be remembered that lots YO and Y1 had been sold under the judgment in the specific performance action and had been purchased by S. Webber Parker, who, on January 6, 1890, conveyed them also to Charles Warren Parker.</p> <p>Coming back to the judgment in the specific performance action, an inspection thereof shows that it directed the sale of the property mentioned in the complaint, and also the Seminary tract of thirty acres, and from the proceeds of such sale the referee appointed in the judgment was directed to pay any lien or liens upon said premises so sold at the time of such sale for taxes or assessments. The sale of the lands, including the Seminary tract, took place under the judgment of foreclosure and sale on the 5th of August, 1889, and on September 5, 1889, the referee’s deed to Edward Burns for the Seminary tract was delivered, and also the deed to S. W. Parker for the lots he purchased, numbers YO and Yl. On November 26, 1889, upon the jietition of the referee, and upon his motion, and after hearing counsel for the purchasers, Parker and Burns, and at their request, but so far as appears without any notice to the plaintiff or the defendant Hawley in that action, or to Miss Morss, the court made an order permitting the referee to pay the sum of about $8,000 to the purchasers as an amount agreed upon between the purchasers and the town of Mamaroneck, to be paid in full for taxes upon the property included in the judgment, and upon the Waters property, and this payment was to be made out of the purchase price of the sale of the property by the referee, and upon proof by the purchasers that they had paid those taxes, and by a provision in the order the purchasers were allowed to retain the tax leases, certificates and assignments to them from the town for the protection of their title. It appears from the report of the referee, which was filed April 25, 1890, that the provisions of the above order were carried out, and that the referee had paid to 8. Webber Parker for taxes the sum mentioned in the order as the amount agreed to be paid to the town of Mamaroneck for full settlement of its claim for such taxes, and had taken Parker’s receipts therefor, and that Parker had taken the assignment of tax leases from the town. These leases cover the lands included in both mortgages of the plaintiffs’ testatrix herein, and Parker assigned to Burns those leases which cover the Seminary tract and retained for himself those which cover the other projrerty. At the commencement of this action Burns was in possession of the Seminary property and Charles Warren Parker, under his deed from his father, was in possession of the other property covered by the mortgages of plaintiffs’ testatrix. They both claimed to be in possession under these tax titles. It is not found that this was their only claim. It will be seen that Miss Morss was a stranger to all these proceedings subsequent to the* time (May 7, 1881) when the complaint in the specific performance action was dismissed as to her. A formal order was subsequently, on Sept. 28, 1889, entered to that effect nunc pro Umo as of the time it was actually made.</p> <p>Upon the trial of this action these defendants, Burns and Chas. W. Par leer, claimed title under the tax leases, and alleged that they were paramount to the mortgages, and they insisted that their validity could not be determined in this action. The court found that they were in possession of the respective properties at the time of the commencement of this action, and claimed to be the owners thereof under their tax titles, and that when they procured the assignment to them from the town of Mamaroneck of the tax leases they did not intend to merge such title in any other title which they might have. The court did not find that the defendants claimed possession under no other title. It made decree for the sale of the premises under* the mortgage of the plaintiffs’ testatrix, cutting off all title which the defendants set up under those tax leases, and providing for the conveyance of a title by the referee which should be paramount to any title derived from such tax leases, excepting as to lots 70 and 71, which were directed to be sold subject to the lien and rights under the $150,000 mortgage or its substitute, the tripartite agreement above stated.</p> <p>The title of the defendant Burns to the seminary tract is prior 'and paramount to the title of the plaintiffs. (Cooley on Taxn. 500, 506; Hilliard on Taxn. 530 ; Blake v. Howe, 15 Am. Dec. 684 Dunkley v. Van Buren, 3 Johns. Ch. 330; Freeman v. Alderson, 119 U. S. 187; Pennoyer v. Neff, 95 id. 714 Brown on Jurisdiction, 169, 199 ; Corwith v. Griffing, 21 Barb. 9 ; Reynolds v. Stockton, 140 U. S. 254 ; 27 Abb. [N. C.] 132; Munday v. Vail, 34 N. J. L. 418; Windsor v. McVeigh, 93 U. S. 274; Hovey v. Elliott, 145 N. Y. 126 ; Laverty v. Moore, 33 id. 658 ; 1 Black on Tax Tit. § 570; Wright v. Sperry, 21 Wis. 336 ; Blackwood v. Van Vliet, 30 Mich. 118 ; Sturdevant v. Mather, 20 Wis. 606 ; Gardiner v. Gerrish, 23 Maine, 46 ; Link v. Doerfer, 42 Wis. 395 ; Seaver v. Cobb, 98 Ill. 203 ; Bybee v. O., etc., R. R. Co., 139 U. S. 633 ; Chard v. Holt, 136 N. Y. 30, 44; Arthurs v. King, 95 Penn. St. 172; Moss v. Shear, 25 Cal. 38; Bowman v. Cockrill, 6 Kans. 311; Moulton v. Cornish, 138 N. Y. 133, 145 ; Brainard v. Cooper, 10 id. 356 ; Francklyn v. Hayward, 61 How. Pr. 43 ; Smith v. Roberts, 91 N. Y. 470;, Edgerton v. Young, 43 Ill. 464; 2 Wash, on Real Prop. 193;, McLaughlin v. Green, 48 Miss. 175, 209 ; Brown v. Simons, 44 N. H. 475; Moore v. Titman, 44 Ill. 370; Williams v. Townsend, 31 N. Y. 411; Ten Eyck v. Craig, 62 id. 406; Watterson v. Devoe, 18 Kans. 223; Morrison v. Bank, 81 Ind. 335 ; Morrow v. Dows, 28 N. J. Eq. 459 ; Cameron v. Irwin, 5 Hill, 280; Nellis v. Lathrop, 22 Wend. 121; In re Wilbur v. Warren, 104 N. Y. 192; Weichselbaum v. Curlett, 20 Kans. 709; Lanier v. Smith, 37 Hun, 529; C. M. L. Ins. Co. v. Bulte, 45 Mich. 113; Cromwell v. MacLean, 123 N. Y. 474; Nelson v. Brown, 144 id. 384; M. Bank v. Thompson, 55 id. 7.) Even if the appellants are disabled from acquiring a tax title to the premises which were sold pursuant to the judgment in Clapp v. Hawley, and are-simply and solely in the position of prior mortgagees, the second of the two mortgages held by the plaintiffs is in no event a lien upon the property, and the judgment, in so far as it jrermitted the enforcement of that mortgage, is incapable of support. (Ayrault v. Murphy, 54 N. Y. 203.) The title of the defendant Parker to lots 54, 56, 57, 58, 59, 60, 116, 119 and 120 is prior and paramount to the title of the plaintiffs, and the sale should have been decreed to be subject to his prior rights and interests therein. (McConihe v. Fales, 107 N. Y. 404; Freeman v. Auld, 44 id. 50; Chard v. Holt, 136 id. 30.) Whatever may be the true view as to the rights of the appellants under the tax titles which they have acquired, and whatever the true construction of the tripartite agreement, there can be no doubt that, under the findings of the trial court by which the respondents are concluded, the dismissal of the complaint was logically required; and the judgment foreclosing and barring the interest of the appellants must, therefore, be reversed. (Place v. Hayward, 117 N. Y. 487; Wangler v. Swift, 90 id. 38; Rogers v. Murray, 3 Bosw. 357; Bunter v. O., etc., Ins. Co., 4 id. 254; Emerson v. County of Santa Clara, 40 Cal. 543; Fleming v. Ins. Co., 4 Whart. 59; Schwinger v. Raymond, 83 N. Y. 192; Bennett v. Bates, 94 id. 354, 367; Wahl v. Barnum, 116 id. 87, 89.)</p> <p>It was error to admit evidence attacking defendants’ tax leases for any purpose. (Cromwell v. Maclean, 123 N. Y. 474; Mills v. Odell, 21 Wkly. Dig. 61.) It was irregular and improper to allow records prior to the mortgages of plaintiff, and they could only have been offered by plaintiff to confuse the court in anticipation of the defense, or else to attempt to try the validity of defendants’ tax titles pleaded by them, and no tax titles can be tried in this foreclosure action against the objection of defendants, and unless by their consent. (Cromwell v. Maclean, 123 N. Y. 474.) The conclusion of the court that the plaintiff is entitled to a judgment of foreclosure and^ sale against the appellants cannot be sustained. (Champney v. Cooke, 32 id. 543.)</p> <p>As to all of the property covered by her mortgages, except lots 70 and 71, Anne A. Mores was a bona fide- mortgagee, without notice of the tripartite agreement bettveen Hawley and wife and Clapp, or of the ' judgment directing a sale of the seminary tract in the suit of Clapp’s executors against Hawley, and is entitled to the protection of the "Recording Act. (2 R. S. chap. 3, § 38; Baker v. Thomas, 61 Hun, 17; Bacon v. Schoonhoven, 87 N. Y. 446; Frear v. Sweet, 118 id. 454.) Burns, as the owner of the equity of redemption of Thomas R. Hawley and Augusta W. Hawley in the thirty acres seminary tract, could not acquire and hold tax titles as against a prior mortgagee from the owner whose equity of redemption he had acquired. Such purchase operated as a payment of the tax and an extinguishment of the tax title. (Thomas on Mort. § 29; Christy v. Fisher, 58 Cal. 256; M. S. Bank v. Bacharach, 46 Conn. 513; Cooper v. Jackson, 99 Ind. 566; Ins. Co. v. Patten, 98 id. 209 ; Fair v. Brown, 40 Iowa, 209 ; Anson v. Anson, 20 id. 55 ; Horton v. Saunders, 13 Mich. 409 ; Fells v. Barbour, 58 id. 49 ; Woodbury v. Swan, 59 N. H. 22; Jones on Mort. § 680 ; Could v. Day, 94 U. S. 405 ; Chard v. Holt, 136 N. Y. 30, 44; Cooley on Taxn. 345 ; Wiltse on Foreclosure, § 505; De Forest v. Farley, 62 N. Y. 628; Blakeley v. Calder, 15 id. 617; Graham v. Bleakie, 2 Daly, 55 ; Ogden v. Walters, 12 Kans. 282; Woodhull v. Little, 102 N. Y. 165.) Burns and Parker are estopped from setting up the tax titles acquired by them from the town of Mamaroneck under the order of the court dated November 26, 1889. (Chard v. Holt, 136 N. Y. 30; Cooley on Taxn. §§ 23, 345, 346; Blake v. How, 15 Am. Dec. 681, and note, 684, and cases in notes; Hilliard on Taxn. 530; Thomas on Mort. § 29; Moss v. Shear, 25 Cal. 45 ; Christie v. Fisher, 58 id. 256; Fair v. Brown, 40 Iowa, 209; Horton v. Saunders, 13 Mich. 409; Anson v. Anson, 20 Iowa, 55.) Charles W. Parker, as the owner of lots 54,</p> <p>56, 57, 58, 59, 60, 116, 119 and 120, by conveyances from S. W. Parker, “subject to all liens or incumbrances now existing on the several parcels or any or either of them,” is estopped from questioning the validity of plaintiff’s mortgages. (McConihe v. Fales, 107 N. Y. 404.) It was competent for plaintiff to give in evidence the chain of title to the property from the date of the $150,000 Clapp mortgage down to the time of the commencement of the actions under the issues raised by defendants’ answer. (Brown v. Volkening, 64 N. Y. 76; Wiltse on Foreclosures, § 193; Horton v. Saunders, 13 Mich. 409 ; Helck v. Reinheimer, 105 N. Y. 470.) A dismissal of the complaint was not required by the conflicting findings. They are all reconcilable, and can be found to harmonize with the other findings and the judgment. (Green v. Roworth, 113 N. Y. 462-467; T. N. Bank v. Parker, 130 id. 415, 417; Cohoes v. C. Co., 134 id. 397-405.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 15, 1894, which affirmed a judgment in favor of defendant 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 assessment, although illegal in fact, was not illegal and void upon the face of the record thereof. (Tripler v. Mayor, etc., 125 N. Y. 617; People ex rel. v. Assessors, 99 id. 683 ; Laws of 1871, chap. 574, § 6; Laws of 1861, chap. 308; In re Bassford, 50 N. Y. 509.) The plaintiffs are entitled to maintain this action and to an injunction restraining the sale of their property. (King v. Townshend, 141 N. Y. 358; Lennon v. Mayor, etc., 55 id. 361; Crooks v. Andrews, 40 id. 550; Hatch v. City of Buffalo, 38 id. 276 ; Scott v. Onderdonk, 14 id. 9 ; Allen v. City of Buffalo, 39 id. 386; Pettit v. Shepherd, 5 Paige, 493; Oakley v. Trustees, 6 id. 262; Mann v. City of Utica, 44 How. Pr. 334; Sanders v. City of Yonkers, 63 N. Y. 489; Laws of 1874, chap. 312, § 2; People v. Myers, 135 N. Y. 465 ; Chase v. Chase, 95 id. 373; In re Smith, 99 id. 424; Tripler v. Mayor, etc., 125 id. 617 ; M. L. Ins. Co. v. Mayor, etc., 144 id. 494.)</p> <p>An action of this nature is forbidden by section 879 of the Consolidation Act. (Laws of 1882, chap). 410, §§ 879-914; Laws of 1858, chap). 338; Laws of 1880, chap). 550; Lennon v. Mayor, etc., 55 N. Y. 361; Astor v. Mayor, etc., 62 id. 580 ; People ex rel. v. Myers, 65 Hun, 14; 135 N. Y. 468; S. A. R. R. Co. v. Mayor, etc., 63 Hun, 271; Mayer v. Mayor, etc., 101 N. Y. 284; In re Smith, 99 id. 424-427; Chase v. Chase, 95 id. 373 ; In re Brainerd, 51 Hun, 380, 384, 385.) The plaintiff shows no ground for equitable relief. If the pfiaintiff’s position, that the assessment is utterly void, under the decision of the Court of Appeals, from lack of jurisdiction, is correct, the so-called assessment is a mere nullity and is not a cloud upon the plaintiff’s property, and does not present a case for an injunction. (Dillon on Mun. Corp. § 906 ; Van Doren v. Mayor, etc., 9 Paige, 388 ; Bouton v. City of Brooklyn, 15 Barb. 375 ; Scott v. Onderdonk, 14 N. Y. 9; Haywood v. City of Buffalo, Id. 534 ; Crooke v. Andrews, 40 id. 547 ; Laws of 1882, chap. 410, §§ 926, 941; In re E. I. S. Bank, 75 N. Y. 289; Cox v. Clift, 2 id. 122; Ward v. Dewey, 16 id. 519; Hatch v. Buffalo, 38 id. 276 ; Newell v. Wheeler, 48 id. 486; Rumsey v. Buffalo, 97 id. 114.)</p>

This was an action upon an undertaking given on appeal. The plaintiff Foo Long recovered a judgment against Chu Fong at a trial at Circuit on the 28th of June, 1888, for the sum of $3,798.99. The defendant therein appealed to the General Term, and on the appeal tlie defendant in this action became the surety for the defendant.

Appeal -from judgment ' of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 10, 1894, which reversed a judgment entered upon a decree of the surrogate of Westchester county settling the accounts of the executors of Ann Bolton, deceased. The facts, so far as material, are stated in the opinion. The executors claim that they have used the proceeds of the last sale in paying the debts of Ann Bolton.

The nature of the action and the facts, so far as material, are stated in the opinion. • The power of the court to amend, change and control its own acts and records is inhe-rent. It is also statutory. (Code Civ. Pro. § 723.) It is also Mare decisis. (Bohlen v. M. E. R. R. Co., 121 N. Y. 546.) The order is not appealable.

Buchanan is, commanding that he be brought before the Court of Appeals in order that it may inquire into the circumstances, and, if no legal reason exists, direct the execution of liis sentence.

The facts, so far as material, are stated in the opinion. The Special Term should have denied the -motion upon the ground that the alleged agreement was not in writing. (Broom v. Wellington, 1 Sandf. 663; Baine v. Thomas, 2 Caines, 95; Leese v. Schermerhorn, 3 How.

of Special Term denying a motion by defendant, the Pittsburgh Bridge Company, to set aside and to vacate as to said company the service of a summons in the above-entitled action. The nature of the action and the facts, so far as material, are stated in the opinion. Curtis was not a managing agent within the meaning of the Code. (Taylor v. G. S. P. Assn., 136 N. Y. 343.) The service upon Curtis was invalid on general principles of interstate comity.

<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 striking from the list or registry of voters in the twenty-fifth election district of the twenty-first assembly district in the city of Hew York the name of Henry W. Bainton.</p> <p>The application was made under section 37 of chapter 275 of the Laws of 1894, which provides for the addition and cancellation of names on the registry lists. The affidavit of the applicant, after stating that he was an elector of the twenty-fifth election district of the twenty-first assembly district of the city of Hew York, and had duly registered as a voter for the election of 1894, alleged that Henry W. Bainton had registered in said district from Ho. 41 East Sixty-ninth street, in said city, as a residence; that said number is a seminary of learning, known as the Union Theological Seminary, in which said Bainton is a student, and is not a resident of said district; that his name appeared in the catalogue of said theological seminary for 1893 and 1894 as a student of the junior class,, his residence being given as Hew York city and 1ns room 1 South Hall. The affidavit of Bainton in opjDOsition to said * motion stated that he was horn in the city of Hew York in 1863, and had always resided in said city; that his father lived on the corner of Sixty-ninth street and Western boulevard until his death in 1890, and that since then the house has been demolished ; that deponent had not resided with his father since-1883; that from 1884 to 1891 he had traveled in the West; that in 1891 he entered the junior class of Columbia College;. that while there he boarded by the week in various places,, and in December, 1892, roomed at Ho. 7 West Eighty-fourth, street, remaining there until September, 1893, when he gave-up his room and removed* his effects to Ho. 41 East Sixty-ninth street, where he has since resided. Deponent further-stated that he had no residence elsewhere, and that there was no other place in Hew York city he could claim as a residence ; that he had no intention of changing his residence and came there for the purpose of obtaining a residence and domicile, being employed at a salary in mission work for the Park. Presbyterian Church of said city.</p> <p>The language of section 3, article 2 of the Constitution places no restriction or limit upon a student’s right to acquire a residence at any place where any other citizen not a student might acquire such residence. (Silvey v. Lindsay, 107 N. Y. 61; Laws of 1892, chap. 680, §§ 35, 36, 110, 111; People t. Holden, 28 Cal. 137; Sanders v. Getchell, 76 Maine, 165; Woods v. Fitzgerald, 3 Oreg. 568; Darragh v. Bird, Id. 221; Hunt v. Richards, 4 Kans. 216 ; Putnam v. Johnson, 10 Mass. 487; In re Ward, 29 Abb. [N. C.] 187; Cerry v. Wilcox, 62 N. W. Rep. 249.) The name of the appellant could not be stricken from the registry of voters in a summary proceeding before a judge at Chambers. (Laws of 1892, chap. 680, §§ 36, 110, 111; People v. Pease, 27 N. Y. 45 ; People v. Stapleton, 119 id. 175; Goetcheus v. Matthewson, 61 id. 420 ; People v. Smith, 10 Misc. Rep. 100; Laws of 1894, chap. 275, § 37; In re Hamilton, 80 Hun, 511; People v. Bell, 119 N. Y. 189.)</p> <p>The order should be affirmed. (Laws of 1894, chap. 275, § 37; Const. N. Y. art. 2, § 3; Silvey v. Lindsay, 107 N. Y. 55 ; People v. Cady, 143 id. 100; U. S. v. U. P. R. R. Co., 91 U. S. 72.)</p>

<p>Appeal from an interlocutory judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 23, 1895, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of Special Term 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>The plaintiff is not entitled to enforce so much of the contract as is in issue, because in so doing the parties would violate article 13, section 5 of the State Constitution. (Laws of 1890, chap. 565, § 58 ; People v. Rathbone, 145 N. Y. 434; People v. Nostrand, 46 id. 375; People ex rel. v. Common Council, 77 id. 507; Roland v. Mayor, etc., 83 id. 376; Bradford v. Justices, 33 Ga. 332; Olmstead v. Mayor, etc., 10 J. & S. 481.) The terms “ free pass,” “ free transportation ” and “ discrimination in passenger rates,” as used in the Constitution and prohibited thereby, are intended to include all passes, transportation and rates which are not paid for in cash or in the usual manner charged the general public. (People v. Rathbone, 145 N. Y. 434.)</p> <p>The provision of the Constitution is directed towards those cases where persons who, being public officers, accept passes and transportation without any lawful consideration therefor. The language of the Constitution in furtherance of the purpose of prohibiting such practices is that public officers shall not receive “ free ” passes or “free” transportation, meaning a right to travel without cost or charge, or the payment of a consideration therefor,' but it does not say that such officials cannot receive passes or transportation giving them the right to travel, if they be not “ free,” assuming, of course, that there be no discrimination otherwise. (Const. N. Y. art. 13, § 5.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made February 15, 1895, which reversed an order of Special Term requiring F. J. Walgering, the purchaser at a partition sale, to complete his purchase and denied a motion by plaintiff for an order requiring her to do so.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The mortgage in question and the foreclosure thereof were regular and valid in all respects, and formed a sure basis of a perfect title in the purchaser at the foreclosure sale. (Goebel v. Iffla, 111 N. Y. 170; Jordan v. Van Epps, 85 id. 427; Barnard v. Onderdonk, 98 id. 158; Frost v. Koon, 30 id. 428; Lockman v. Reilly, 95 id. 64; Riggs v. Pursell, 66 id. 193 ; De Forest v. Farley, 62 id. 628 ; Blakeley v. Calder, 15 id. 617.) The order of the G-eneral Term is appealable to this court. (Shriver v. Shriver, 86 N. Y. 575.)</p> <p>The mortgage of $6,000, executed by Ann McConnell as executrix of the last will and testament of Thomas McConnell, deceased, on premises in question (belonging to estate of said deceased), as further collateral security for the payment of her individual bond and mortgage, was void. (Clarke v. Coe, 52 Hun, 379 ; Lawrence v. Townsend, 88 N. Y. 24, 29; Muller v. Struppman, 55 How. Pr. 521; Smith v. Reid, 134 N. Y. 568; Hetzel v. Barber, 69 id. 1; Allen v. DeWitt, 3 id. 276.) The rights and interest of the three infant defendants named in will of Thomas McConnell, deceased, were not cut ofi by the judgment of foreclosure in Devlin v. Martin, although made parties defendant thereto. (Lewis v. Smith, 9 N. Y. 502; Frost v. Koon, 30 id. 428, 443; M. Bank v. Thompson, 55 id. 7 ; Rathbone v. Hooney, 58 id. 463 ; E. S. Bank v. Goldman, 75 id. 127; Nelson v. Brown, 144 id. 384.) The court will protect infants’ rights, even if their guardian neglects them, and where a guardian neglects to ask for such a decree as the infant is manifestly entitled to the court will, nevertheless, make such a decree. (Stephens v. Van Buren, 1 Paige, 479 ; Litchfield v. Burwell, 5 How. Pr. 344; Bulkley v. Van Wyck, 5 Paige, 536 ; Leggett v. Sellon, 3 id. 84; Freeman v. Munns, 15 Abb. Pr. 468.) The referee’s deed in the foreclosure suit of Devlin v. Martin, conveyed at-most to the purchaser of the premises in question the life estate of the executrix therein. It did not convey the right,, title and interest of the infant devisees in said premises. (2 R. S. 192, § 158; Code Civ. Pro. § 1632; C. P. E. Church v. Mack, 93 N. Y. 488; Mygatt v. Coe, S N. Y. S. R. 434 Clements v. Griswold, 46 Hun, 377.) The purchaser is not bound to accept title upon affidavits submitted in answer to-objections to the title, appearing in the record evidence of such title. (Jordan v. Poillon, 77 N. Y. 521; Oppenheimer v. Humphreys, 125 id. 733; Coray v. Mathewson, 44 How. Pr. 80; B. P. Co. v. Armstrong, 45 N. Y. 234.) The title to-premises in question is not free from reasonable doubt." A grave question of law is presented whether the infant-deviseesmay not successfully move the court, on a proper application, to vacate the judgment in Devlin v. Martin, or may not successfully maintain an action of ejectment to recover possession of the premises in question. (Jordan v. Poillon, 77 N. Y. 521; Cambrelling v. Purton, 125 id. 615.)</p>

Cboss-appeals from order of the General Term of the-Supreme Court in the first judicial department, made April 11, 1895, which reversed an order of Special Term vacating and setting aside an assessment of the relator’s capital stock for taxation as personal property for the year 1894, and affirmed the proceedings of the commissioners of taxes and assessments. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 13, 1894, which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p> <p>This action was brought by plaintiff, as guardian ad litem, of the infant children of James Lamb, deceased, to recover for the use and occupation of certain real estate belonging to said infants.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in ruling that the action would not lie to recover the value of the use and occupation in the absence of an agreement, express or implied, between the guardian and the defendant to pay therefor. (Allen v. Sayer, 2 Vern. 368, 369; Bennett v. Whitehead, 2 P. Wins. 644; Dormer v. Fortescue, 3 Atk. 124, 128, 129; Hicks v. Sallitt, De G., M. & G. 782; Boylon v. Deinser, 45 N. J. Eq. 485 ; Drury v. Connor, 1 H. & Gill, 220, 230 ; Van Epps v. Van Deusen, 4 Paige, 64, 71; Evans v. Pearce, 15 Gratt. 513 ; Martvn v. Fielder, 82 Va. 455, 458, 459; Drnis v. Harkness, 6 Ill. 173, 181, 182; Doe v. Kien, 7 D. & E. 382; Quinton v. Frith, 2 Ir. Eq. 396 ; Morgan v. Morgan, 1 Vern. 489; Pennington v. Fowler, 7 N. J. Eq. 343 ; Alston v. Alston, 34 Ala. 15 ; Espey v. Lake, 15 Eng. L. & Eq. 579; Boylon v. Boylon, 45 N. J. Eq. 485, 493; Heath v. Waters, 40 Mich. 473 ; Schouler’s Dom. Rel. § 326; Peale v. Thurmond, 77 Va. 753; Bloomfield v. Eyre, 8 Beav. 250; Pascoe v. Swan, 27 id. 508; Waters v. Clark, 22 How. Pr. 104; Morris v. Niles, 12 Abb. 103 ; Ten Eyck v. Hotaling, 12 How. Pr. 523; Lounsbury v. Purdy, 18 N. Y. 515, 521; Reeder v. Sayre, 70 id. 181, 190; N. Co. v. S. Co., 72 Hun, 158; Rochester v. Pierce, 1 Camp. 467; Hull v. Vaughan, 6 Price, 157; Newport v. Saunders, 3 B. & A. 411; Hellier v. Silcox, 98 L. J. [Q. B.] 295 ; Smith v. Eldridge, 15 C. B. 236 ; Gibson v. Kirk, 1 Q. B. [1 Ad. & El.] [N. S.] 850, 855; Beverley Case, 6 Ad. & El. 839 ; Eppes v. Cole, 4 Hen. &M. 171; Sutton v. Mandeville, 1 Munf. 407; 1 Chitty on Cont. [11th ed.] 511-513; Preston v. Hawley, 139 N. Y. 300.) The opinion of the General Term is founded upon a plain misapprehension of the facts established by the verdict. Under the charge of the trial judge, the only issuable fact found by the jury was, that there was no agreement, express or implied, for the payment of rent. Every other fact in dispute was left unsettled' and undetermined, as the court held, in terms, that in the absence of such an agreement, the plaintiffs could not recover. But the General Term have nevertheless affirmed the judgment below upon three assumptions of fact, none of which is supported by the verdict. (Jackson v. Sears, 10 Johns. 436; Torry v. Black,, 58 N. Y. 185, 186 ; Howell v. Mills, 53 id. 322; Sherman v. Wright, 49 id. 228 ; Foley Case, 138 id. 333; In re Wendell, 32 Hun, 545; Knothe v. Kaiser, 2 id. 515; In re Kane, 2 Barb. Ch. 375; Beardsley v. Hotchkiss, 30 Hun, 607, 618; Kelaher v. Mc Cahill, 26 id. 149 ; Clark v. Montgomery, 23 Barb. 465; Tyler on Infancy, 292-298; Dedham v. Natick, 16 Mass. 135 ; Nightingale v. Wittington, 15 id. 272-274; Furman v. Van Sise, 56 N. Y. 435 ; Taylor v. Hill, 87 Wis. 669.)</p> <p>The plaintiffs made out no case against the defendant, and should have been non-suited. ‘ (Smith v. Stewart, 6 Johns. 46 ; Benjamin v. Benjamin, 5 N. Y. 383, 388; Thompson v. Bowe, 60 Barb. 463; Sylvester v. Ralston, 31 id. 286; Hall v. Southmayd, 15 id. 32, 36; Preston v. Hawley, 101 N. Y. 586, 588; 139 id. 296, 300; Collyer v. Collyer, 113 id. 442 ; Clark v. Clark, 58 Ill. 527; Whitman v. Bowe, 56 Hun, 141; Schouler’s Dom. Rel. [2d ed.] 325, 326; Wilkes v. Rogers, 6 Johns. 566; Thompson v. Brown, 4 Johns. Ch. 619 ; In re Bostwick, Id.; Whipple v. Don, 2 Mass. 415 ; Williams v. Hutchinson, 3 N. Y. 312; Ross v. Hardin, 79 id. 84, 90; Beardsley v. Hotchkiss, 96 id. 201, 221; Ryan v. Bolts, 16 J. & S. 152-154; Elliott v. Gibbons, 30 Barb. 498; Gladding v. Follett, 2 Dem. 58; 95 N. Y. 652.) The claim of the plaintiffs cannot be sustained upon the theory advanced by appellants’ counsel upon the appeal to the General Term and insisted upon in their brief in this court, that the action may be considered as equivalent to a bill in equity for an accounting or as an action of tort. (Hurd v. Miller, 2 Hilt. 540; Henwood v. Cheesernan, 3 S. & R. 500; South-wick v. F. N. Bank, 84 N. Y. 420, 428, 429; Truesdell v. Sarles, 104 id. 164, 167; Reed v. McConnell, 133 id. 425, 434; People v. Townsend, 19 Hun, 137; 80 N. Y. 656; Walter v. Bennett, 16 id. 250; Matthews v. Cady, 61 id. 651; Ross v. Mather, 51 id. 108; Reubens v. Joel, 13 id. 488; Goulet v. Asseler, 22 id. 225 ; Gould v. C. C. N. Bank, 86 id. 75, 83; Hicks v. Sallett, 3 De G., M. & G. 752.) There were no errors prejudicial to the plaintiff in the admission or exclusion of evidence. (Mead v. Shea, 92 N. Y. 122; Stark v. People, 5 Den. 106 ; Plet v. Bouchard, 4 Edw. 30; Richardson v. Northrup, 66 Barb. 85; Starr v. Craigen, 24 Hun, 177; Schultz v. T. A. R. Co., 89 N. Y. 242, 249.)</p>

<p>Appeal from part of an order of the Special Term of the Supreme Court in the first judicial department, made June 15, 1894, which reversed a decree of the surrogate of the county of Mew York so far as it vacated letters of administration of the estate of Josephine Patterson, deceased, to "William H. Patterson, and affirmed said decree so far as it vacated a decree of said court passing and settling the accounts of said William H. Patterson as such administrator.</p> <p>The nature of the proceeding and the facts, so far as material, are stated in the opinion.</p> <p>The issuance of the letters to Patterson was an adjudication that he was the husband of the decedent, and until they are first revoked by a direct proceeding for that purpose it remained res adjudícala in this proceeding to vacate the decree judicially settling his accounts, and to obtain a distribution of the estate by Patterson as administrator. (Code Civ. Pro. §§ 2591, 2660, 2662, 2685 ; 1 Greenl. on Ev. § 525 ; Hankins v. Turner, L. R. [10 Ch. Div.] 372; Porter v. Purdy, 29 N. Y. 106 ; Van Steenburgh v. Bigelow, 3 Wend. 42; Caujolle v. Curtiss, 13 Wall. 465 ; Carroll v. Carroll, 60 N. Y. 121; James v. Adams, 22 How. Pr. 409; Sheldon v. Wright, 5 N. Y. 482; Roderigas v. E. R. S. Inst., 63 id. 460; Bolton v. Schriever, 135 id. 65; Plume v. H. S. Inst., 46 N. J. L. 211.) The petitioner had no interest in the estate, and could have no standing as a party. (Code Civ. Pro. §§ 2487, 2647; In re Peaslee, 73 Hun, 113.) But conceding the appellant’s status as husband was open to attack in this collateral proceeding the decisions of the lower courts on the question of marriage, were against settled rules of law and in the face of the undisputed evidence in the case. (Is re Harriott, 145 N. Y. 540; Rose v. Clark, 8 Paige, 573; Badger v. Badger, 88 id. 546 ; Clayton v. Wardell, 4 id. 230 ; Hines v. McDermott, 91 id. 451; Wilcox v. Wilcox, 46 Hun, 37; Hill v. Burger, 3 Bradf. 432 ; In re Christie, 1 Tucker, 81; Jackson v. Claw, 18 Johns. 346; Fenton v. Reed, 5 id. 52; 2 Rice on Ev. 998; Wilkinson v. Payne, 4 T. R. 468; Piers v. Piers, 2 II. L. Cas. 331; 13 Jur. 569; Rex v. Twyning, 2 Barn. & Ald. 386; Harrod v. Harrod, 1 Kay & J. 4; 18 Jur. 853 ; Goodmam v. Goodman, 5 Jur. [N. S.] 902; 28 L. J. Ch. 745 ; Sichel v. Lambert, 15 C. B. [N. S.] 181; 1 Greenl. on Ev. §§ 105, 200 ; Gall v. Gall, 114 N. Y. 109. The order of the General Term is appealable to this court. (Libbey v. Mason, 112 N. Y. 525 ; In re Tilden, 98 id. 434; In re Flynn, 136 id. 287.)</p> <p>The courts below had power to revoke, for fraud, the decree judicially settling the appellant’s accounts, as administrator, while allowing the letters of administration, issued to appellant, to remain in full force. (Code Civ. Pro. §§ 2472, 2473, 2481, 2591, 2660, 2661,2666, 2730, 2743 ; Knox v. Nobel, 77 Hun, 230 ; In re Underhill, 117 N. Y. 471, 475; In re Verplanck, 91 id. 439, 450.) Bone of the exceptions to the admission or exclusion of testimony was well founded. (Code Civ. Pro. § 2545; Chamberlain v. Chamberlaim, 71 N. Y. 423; Hill v. Burger, 3 Bradf. 432, 449.)</p>

<p>Plaintiff, an unmarried woman, entered into the service of W., defendant’s intestate, as a housekeeper, and to render such other services as should he required of her, under an agreement that she was to be compensated for her services by certain specified provisions in his will. Plaintiff having received and accepted an offer of marriage, notified W. thereof, stating to him her willingness to carry out and continue the performance of her contract, and that her proposed husband was entirely willing ,she should do so. W. refused to receive her services as a married woman, and discharged her soon after she married. In an action upon •the contract, held, that the mere fact of a contemplated marriage, or the marriage itself, did not necessarily as matter of law disqualify plaintiff from rendering the services contemplated in the agreement; and so, that the question as to whether the marriage afforded ground for plaintiff’s discharge was properly submitted to the jury.</p> <p>It appeared that W. was a man of wealth, and that his establishment was conducted on .a lavish scale of expenditure. Plaintiff called M. as a witness, who testified that she had conducted boarding houses of the highest class in tha city of New York, had hired many housekeepers and paid them their wages, and that their services were fairly worth the amount paid, which "ivas stated. This testimony was received under objection and exception. Held, no error.</p> <p>'Said witness also testified that she had seen plaintiff at various times doing sewing of all kinds and mending for W. The witness was then asked and permitted to answer as to the value of such services, assuming that they were in each month of about the same proportion as when named: by the witness. This was objected to, among other things, on the ground that the complaint merely set forth the employment of plaintiff as a .housekeeper, and this did not include plaintiffs services as a seamstress. Held, xmtenable.</p> <p>Defendant appealed from an order denying a motion for a new trial, made upon the minutes of the judge, and also from the judgment entered on the verdict. The General Term reversed the judgment. Its order was upon plaintiff s motion amended, so as to show that the reversal was upon exceptions alone, and the order denying a motion for a new trial was affirmed upon the facts. Held, that the questions reviewed by the-General Term upon appeal from the order denying a motion were not before this court, and as to them it had no jurisdiction, and as it appeared that the reversal of the judgment was upon questions of law only, they were reviewable here.</p>

<p>Under the provision of the Code of Civil Procedure (§ 1323) providing that “ when a final judgment or order is reversed on appeal the appellate court or the General Term of the same court, as the case may be, may compel restitution of property,” etc., when a judgment of the City Court of New York has been affirmed by the General Term .of the court, but subsequently reversed by the General Term of the Court of Common Pleas and the case remitted to the City Court for a new trial, and when pending the appeals the property of the judgment debtor has been sold on execution, a motion for restitution may properly be made at the General Term of the City Court.</p>

<p>Appeal from order of the general term of the court of common pleas for the city and county of New York, which affirmed an order of special term vacating and setting aside an order for the examination of defendant John Cahill in proceedings supplementary to execution.</p> <p>Said Cahill, as surety with the defendant Thomas G. Cowan, entered into a recognizance for the appearance of the latter at the court of general sessions in and for the city and county of New York at a time fixed. Cowan having failed to appear at ■that time, an order was entered declaring the recognizance forfeited and thereafter judgment was docketed thereon and ' an execution issued which was returned unsatisfied. An. order ¡.was subsequently obtained for the examination of Cahill in proceedings supplementary to execution, upon an affidavit which alleged the facts above set forth and also that no part of said judgment had been paid.</p>

<p>When a petition, which institutes proceedings for the condemnation of real property, is properly and duly presented to the Supreme Court, that court is required, if no sufficient cause is shown in opposition, to make an order appointing commissioners to ascertain the compensation to be made to the property owner; and, when their report comes on to be confirmed by the court, then is the time for judicial action upon it, either in confirming it, or in setting it aside for irregularity or for error of law in the proceedings.</p> <p>Where, therefore, in such proceedings, it appeared that the land proposed to be condemned was laid out as a boulevard under the provisions of chapter 290, Laws of 1867, section 24 of which prohibited the construction of rail or tramways thereon, without a special act of the legislature, and provided that in such case nothing should affect the owners’ right to recover the full value of the land taken, as if the boulevard had never been laid out; and it also appeared that chapter 728, Laws of 1887, amended said section by excepting from said prohibition railroad companies organized under chapter 252, Laws of 1884, of which the petitioner was one, and the court refused to appoint commissioners, upon the ground that, as the act of 1887 had been held to be unconstitutional, it had no power to authorize proceedings under said act, held, that such power was conferred upon the Supreme Court by the General Railroad Law, and was not affected by the said act of 1887; that its provisions were for the consideration of the tribunal to be constituted by the order of the court or of the court itself upon the coming in of its report, and that the refusal to appoint commissioners was error.</p>

The facts, so far as material, are stated in the opinion. This statute being a remedial one and designed to afford relief to a very deserving class of public servants, not being in any way penal in its character or in derogation of the common law, should receive a liberal construction for the purpose of advancing the remedy intended by the act. There can be no question whatever that the relator is within the reason of the statute.

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made June 23, 1893, which, affirmed an order of Special Term denying a motion by defendant for leave to serve a supplemental answer.</p>

The following is the opinion in full: “ This action was brought to recover damages for negligently causing the death of William Burns, the plaintiff’s intestate. “ The accident occurred on the 24th day of June, 1892, by tine caving in of the walls of a trench which Burns was digging for a sewer.

<p>Motion to dismiss appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 28, 1894, which modified and affirmed, as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>