Volume 19 — Jones & Spencer's New York Superior Court Reports

Appeal by defendants from a judgment entered upon the decision of a judge at a special term upon a trial before him without a jury. The facts sufficiently appear in the special term opinion. of counsel for appellants, argued :— I. The railroad tracks and stations, and the operation of the railroad upon the tracks are no nuisance, because authorized by law.

Appeal by plaintiff from an order denying his motion for a new trial. The facts sufficiently appear in the opinion. of counsel for appellants, on the points decided, urged. Held: that the note itself was not proof of the same character as that offered on the trial. It was of a higher grade and the motion was granted (Platt v. Munroe, 34 Barb. 296).

Appeal by defendant from a judgment against Mm, entered on the verdict .of a jury, and also from an order denying a motion for new trial made upon the judge’s minutes.

<p> Contract.—License.—Consideration.—Presumption as to pjapment and as to promise to pay.—Agent to obtain signature—authority to bind principal. </p> <p>In an action for damages for an unlawful entry by defendant into premises let by him to plaintiff and for unlawful acts therein done, the defense was, in substance, that plain till, among other tenants of adjoining houses, owned by defendant and in which he desired to make certain alterations, signed a writing as follows: “We, the undersigned, do hereby agree for the consideration of one dollar to us paid, the receipt of which we hereby acknowledge, to permit William T. Walton or his agents to make any alterations which he or they may deem necessary to carry out the plans and specifications in changing the houses we now occupy.” It appeared that the one dollar was not paid to plaintiff, and it was contended on her behalf, that there was no consideration, and that the instrument was therefore a mere license.</p> <p>Held, that as the plaintiff, the party apparently charged, only proved that the consideration named in the agreement was in fact not paid, and did not rebut the presumption that there was an agreement to pay it, the instrument must be held to be a, contract, and plaintiff had no power to withdraw the right it gaye defendant to enter for the purpose of the alterations.</p> <p>There was evidence that plaintiff asked defendant’s agent who presented the contract to her for signature, what the alterations were to be, and before she signed it, was told by him that certain things were to be done, which it transpired were different from the alterations as in fact afterwards made, which latter were in conformity with the plans and -‘-’pecifications forming a part of the contract. On this statement of defendant’s agent, plaintiff signed the contract without examination of the plans and specifications referred to therein.</p> <p>Held, that plaintiff was bound by the contract and used the agent’s information at her own risk; and that she could not, in the absence of fraud, rely on an oral explanation of the writing as an answer to the contract; and that there was no presumption that the agent to procure the signature was authorized to bind his principals as to the contents of the plans and specifications.</p>

In order to make the approach to Third avenue through One Hundred and Thirty-ninth street, the street was filled in for about 300 feet easterly from Third avenue, and such flagging as was on the north side of the street was taken up in the course of the work.

Appeal by plaintiff from judgment entered upon verdict for defendant, and from an order denying plaintiff’s motion for a new trial made upon the judge’s minutes. The facts sufficiently appear in the opinion.

Appeal by defendant from judgment against him entered on verdict of jury and from order denying motion for new trial made upon judge’s… Held: that under the general issue the defendant could show that the account did not show him to be indebted, because it was not correct; and in Bouslong v. Garret (39 Ind. 340), where it was held that the stating of an account is not conclusive upon the parties, and that consequently errors therein may be shown and corrected under the…

The complaint alleged that the plaintiff as sheriff, under sundry attachments (particularly set forth) levied on a sum of money in the possession of… Held: that, if looking at the complaint the court can see with ordinary certainty the meaning of the different allegations, and the cause of action intended to be set up by them, the pleading is not objectionable under section 246 of the Code (Brownell v. Natl. Bk. of Gloversville, 13 Week. Dig. 371; Williamson v. Nat. Elec.

The facts sufficiently appear in the opinion. I. This case does not come within the meaning or intent of section 3247 of the Code (Peck v. Yorks, 75 N. Y. 421; Dowling v. Buckling, 58 Ib. 658 ; Wolcott v. Holcomb, 31 Ib. 125).

Smith, Esq., the receiver appointed herein, to execute a power of sale contained in the will of Nathan 0. Platt, deceased, and to sell the premises Nos. 119 and 121 Nassau street, in this city, thereunder. Nathan 0.

Appeal by the defendant from a judgment for plaintiff, entered upon the report of a referee. This action is brought to recover from the defendant, as executrix of J. G-.

The facts appear in the opinion. The contention of the defendants is that the legislature in changing the words of section 292 of the old Code, “at any time after such return made,” to the words of section 2435, “within ten years after the return of an execution,” intended to limit the right of the judgment-creditor to examine his judgment-debtor within ten years after the return of the first execution. Such a construction would be manifestly unjust.

This action is brought to follow what was claimed to be a fund held by defendant in trust for plaintiff. Henry B. Hammond, as treasurer of the Colorado Cattle Company, on June 26, 1880, remitted $11,672.50 to the Union Trust Company, with the intention thereby to provide for the payment of certain coupons falling due July 1, 1880. This intention was understood by the Trust Company, but no words were used by either party importing an irrevocable direction to that end.

The facts appear in the opinion. A. defendant cannot properly plead a denial of knowledge or information sufficient to form a belief as to an allegation in the complaint concerning a matter which… Held: that a denial of this sort might be stricken out as sham ; and even that a positive general denial might be thus stricken out, provided it could be shown by affidavits that it was clearly false.

Appeal by plaintiffs from judgment dismissing complaint upon demurrer, with costs, and from the interloeutory judgment and order sustaining demurrer to complaint. The facts appear in the opinion.

Appeal by defendants from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying defendants’ motion upon the minutes for a new trial. The facts appear in the opinion. I. No device will be allowed to protect usury, and courts will examine into the real nature of the transaction. If there be, in fact, a usurious loan, no device will protect it (Spaulding v. Bank of Muskingum, 12 Ohio, 544). II.

<p>• Appeal from judgment in favor of defendants.</p> <p>The facts appear in the opinion.</p>

28. Also appeal from order denying defendant’s motion as to the taking and using of defendant’s deposition. Also appeal from order refusing a postponement of the trial. The facts appear in the opinions. The following opinion was delivered at special term.

Motion by plaintiff, for judgment upon a verdict, directed for plaintiff, subject to the opinion of the general term. ■ The facts sufficiently appear in the opinion. attorney, and of counsel for plaintiff, argued :—I. The defense as to an alleged indebtedness of the company to Stearns wholly failed. No such indebtedness existed until after the execution of the contract sued on, and then it arose on an obligation created by the defendant. II.

<p>Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.</p> <p>The facts sufficiently appear in the opinion.</p> <p>on the points decided, argued :—I. The plaintiff failed to show, that she did not have the means of discovering the alleged defect, and equal means of knowledge with the defendant in respect thereto. Servant, in order to recover must establish three propositions : 1. That appliance was defective; 2. That master had notice or knowledge, or ought to have had; 3. That servant did not know, and had not equal means of knowing with master (Loonan v. Brockway, 3 Rob. 74; Wood, Master & Servant, 791; DeForest v. Jewett, 88 N. Y. 265 ; Wright v. N. Y. Central R. R., 25 Id. 562; Hayden v. Smithville Co., 29 Conn. 548; Mad. Riv. Co. v. Barber, 5 Ohio St. 541; De Graff v. S. B. & N. Y. R. R. Co., 3 T. & C. 255; S. C., 76, N. Y. 125).</p> <p>II. The court erred in refusing to dismiss the complaint on the ground mentioned in preceding point, and in refusing to charge on that proposition in accordance with the defendant’s request. This point is sufficient to reverse the judgment (Loonan v. Brockway, 3 Rob. 71-83; Wright v. N. Y. Central, 25 N. Y. 562; DeForest v. Jewett, 88 Id. 265).</p> <p>III. But in fact, there was no evidence to show, that there was any defect in the machine ; or that the machine was defective in construction. See the distinction between a defect in the construction of machine and its getting out of order or becoming defective by use (De Graff v. N. Y. Central, 76 N. Y. 125).</p> <p>IV. There was no evidence that the machine was dangerous, or was in a dangerous condition at the time of the accident. Yor any evidence offered to show, that the defendent had any knowledge of the alleged dangerous condition of the machine, or that it was called upon or neglected to remedy it, or declined or neglected to have it remedied (Devlin v. Smith, 89 N. Y. 170; Loonan v. Brockway, 3 Rob. 74; Wright v. N. Y. C. R. R. Co., 25 Id. 562 ; Owen v. N. Y. C. R. R., 1 Lans. 108).</p> <p>V. Plaintiff testified : “I have to keep my foot on the treadle all the time, in order to make the machine work, and if I take my foot off the treadle, the knife stops; so the knife does not move at all, unless I keep my foot on the treadle all the time.” The injury, therefore, was not occasioned by any defect or disorder in the machine, by the knife sticking in the die, or by the shaving or the removal of the shaving, but was occasioned by the knife’s coming down while her hand was under it; and the knife could not have come down unless she had put her foot on the treadle.</p> <p>VL The court erred in refusing to dismiss the complaint, because the plaintiff had not shown negligence on the part of the defendant, or the absence of contributory negligence on her part (Reynolds v. N. Y. Central R. R. Co., 58 N. Y, 248 ; Cordell v. N. Y. Central R. R. Co., 75 Id., 332).</p> <p>VII. The charge that the fact of infancy of the servant or operator affected the question of defendant’s liability, was erroneous (De Graff v. S. B. Co., 76 N. Y. 125 ; Evans v. Lake Shore Co., 12 Hun, 289 ; Sullivan v. India Mfg. Co., 113 Mass. 396).</p> <p>on the points decided, argued :—I. No error was committed by the refusal of the judge to dismiss the complaint at the close of the testimony. The plaintiff had shown that the machine at the time of the accident was both out of order and defective. There was undisputed testimony then that the action of the knife in coming down upon her hand on the occasion when the accident occurred, was an indication of disorder in the machine which had never developed before. It had been shown by undisputed testimony then, that the defendant knew that the machine had been out of order for two months at least, and that the plaintiff had frequently complained to the defendant, through its agents, that she could not work it properly. Daniel Cashin, a superintendent of the defendant, and called by him as a witness, had, at this time, confirmed the statement of the plaintiff that the machine was out of order, and that she had made frequent complaints to him and the defendant’s machinist in regard to it. Some evidence at the time this motion was made, had been presented on the part of the defendant which, if credited, might tend to show some negligence on the part of the plaintiff, but there was no evidence which established such unmistakable negligence on her part as would justify the judge in taking the case from the jury (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464-466 ; Hawley v. N. C. R. R., 82 Ib. 370 ; Ochseinbein v. Shapely, 85 Ib. 224 ; Dowling v. N. Y. C. & H. R. R. R. Co., 90 Ib. 670 ; Palmer v. Dearing, 93 Ib. 7).</p> <p>II. There was no error in charging the jury in effect “ that more care should be expected from a master in providing machinery, and the supervision of it, when he employed young persons and women to work it, than when he employed male adults.” The evidence shows that the plaintiff, at the time of the accident was seventeen years of age (Omeno v. The Hud. R. R. R. Co., 38 N. Y. 445 ; Prendergast v. N. Y. C. & H. R. R. R. Co., 58 Ib. 652; Thurber v. H. B. M. & F. R. R. Co., 60 Ib. 327; Kain v. Smith, 89 Ib. 375, 384 ; Dowling v. N. Y. C. & H. R. R. Co., 90 Ib. 670).</p>

Appeal by plaintiff from final judgment entered upon demurrer to complaint. The action was for damages from an alleged libel. The complaint averred that as a consequence of the libel, his employer had removed him from a place at the head of a department, and had given him notice that his services would not be required after a certain date.

<p>New trial—Preponderance of evidence—report against—reversal of.— Legal services.</p> <p>In an action to recover the value of legal services, the amount claimed was $9,275. The referee found $7,275. There were two witnesses for plaintiff. One who had very little practical knowledge of the value of services'in the city of New York, placed the value at $9,800; the other placed the value at $7,000. The defense called two witnesses, who were in full practice in the city, who respectively estimated the value at about $1,700 and $2,000. Plaintiff's bill as originally presented to defendants was $5,102.52. Held, that the finding of the referee could not be sustained, and the judgment entered on his report was reversed, and a new trial ordered.</p>

Appeal by plaintiff, from judgment for defendant, entered on the report of a referee.

Apeal from a judgment entered upon the verdict of a jury- This action was brought the to recover sum of $275, damages for non-delivery of a package delivered by the plaintiff to the Adams Express Co., as a common carrier.

Appeal by plaintiff from judgment dismissing complaint. This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the entry by defendants under an attachment against a third party, upon the premises occupied by her as a liquor store, and the taking and conversion of portions of the stock, interfering with her business, injuries to the stock by handling, and the recovery of §604.80, paid by plaintiff to defendants to secure the return…

Appeal by plaintiff from a judgment rendered in his favor, on account of the inadequacy of the verdict. Held: to be a conversion, although the property was not removed, and the defendant liable for the amount. In Baldwin v. Cole (6 Mod. 212), plaintiff, a workman, demanded his tools of defendant, surveyor of work in the Queen’s yard, which was refused, but subsequently tendered.

<p>Appeal by plaintiff from judgment dismissing complaint entered upon the decision of the court at special term.</p> <p>The facts in the case appear fully in the opinion of the court.</p> <p>—I. The membership of Erastus F. Mead in the Stock Exchange is property, and the title to the same is vested in and held by the plaintiff (Platt v. Jones, 96 N. Y. 24 ; Powell v. Waldron, 89 Ib. 328 ; Hyde v. Woods, 94 U. S. 523 ; In re Ketchum, 1 Fed. Rep. 840 ; In re Warder, 10 Ib. 275 ; Grocers’ Bank v. Murphy, 60 How. Pr. 426; Ritterband v. Baggett, 42 Super. Ct. 556 ; Elliott v. Mer. Bank of St. Louis, 28 Alb. Law J. 512). The constitution of the Stock Exchange mentions “ membership ” as property, and provides for its sale (Art. 13, § 2, fol. 140 ; Art. 14, § 2, fol. 147; § 3, fol. 149).</p> <p>II. One of the valuable rights and privileges to which, as transferee of said membership, the plaintiff is entitled, is to have his name submitted to the committee on admissions of said Stock Exchange for the approval of said committee for admission to membership to said Stock Exchange, or to transfer said membership to some other person, and to have the name of such transferee submitted to the committee on admissions for the approval of said committee for admission to membership of said Stock Exchange (Art. 13, § 1, fol. 140 ; Art. 4, § 3, fol. 120). The circumstance that the approval of the committee on admissions is required before the transfer can be perfected, only diminishes the value of the right to transfer. It does not annihilate it.</p> <p>TTT- The plaintiff is obstructed and hindered in applying, as transferee of the membership of Head, to the committee on admissions of the Stock Exchange, by the acts of the defendants. 1. By the act of the defendant Emmons, in obtaining a transfer of the membership of Mead in 1879. 2. By Emmons obtaining the approval of the committee on admissions to that transfer, and by the committee approving the transfer. 3. By electing Emmons a member of the Exchange on the basis of that transfer when the title was in the plaintiff. 4. By announcing to the Exchange that Emmons had been admitted to membership therein, the transfer from Mead being the basis of that announcement. 5. By inscribing the name of Emmons on the roll of said Exchange, the transfer from Mead being the basis for such inscription (Art. 9, Const, fol. 132). (>. By entering in the ledger containing the names of all the members of the Exchange the name of J. Frank Emmons as holding a membership by transfer from Erastus F. Mead. The constitution (Art. 8, fol. 131) provides expressly for such a ledger, making it one of the official documents of the association. 1. By recognizing, from that time until now, Emmons as a member, upon the basis of that transfer from Mead, and Emmons using the privileges of that transferred membership. 8. By taking the position which is set forth in their answers, that Emmons is in fact the transferee of Mead’s membership, and that said transfer was duly made, and that Emmons became a member of the Exchange by virtue of that transfer in connection with other acts. 9. By accepting $500 from Emmons as his initiation fee, and thus putting it out of the power of the Exchange to admit the plaintiff for less than $20,000 initiation fee.</p> <p>IV. Under the constitution of the Exchange, the committee on admissions could not approve another transfer of Mead’s membership, when that membership has already been transferred to Emmons, and that transfer approved and the transferee admitted to the Exchange (Art. 13, § 1, fol. 140 ; Art. 4, § 3, fol. 120 ; Art. 8, fol. 131). Membership in the Exchange as “ transferee of Mead ” is a recognized status under the constitution. And Emmons has wrongfully intruded into that, with the co-operation of the Exchange, and is wrongfully sustained by the Exchange in that intrusion. The provisions of the constitution are binding on the committee on admissions and on the Stock Exchange, and regulate their powers and mode of procedure (Imperial Hydropathic Hotel Co. v. Hampson, 31 Week. Rep. 330 [Eng. C. of Appeal] ; People ex rel. Elliott v. N. Y. Cotton Exchange, 8 Hun, 216).</p> <p>V. The plaintiff has the right to call upon the court to interpose and compel action on the part of the defendants for the purpose of removing any obstruction or obstacle that may stand in the way of a complete realization by the plaintiff of the value of the property transferred to him (Platt v. Jones, 96 N.Y. 24; Cohen v. N. Y. Mut. Ins. Co., 50 Ib. 610; Meyer v. Knickerbocker Ins. Co., 13 Ib. 524; Hayner v. Am. Pop. Ins. Co., 36 Super. Ct. 214; S. C., affirmed, 62 N. Y. 620 ; Phelps v. McDonald, 99 U. S. 298).</p> <p>VI. The Stock Exchange are trustees for McCabe to act in protection and preservation of his rights. McCabe has rights in this voluntary association—in some respects less than those of full membership—but none the less rights. The Stock Exchange have violated these rights, and still continue to violate them. They have been active cooperators with Emmons in wrongfully transferring the membership, which is the plaintiff’s property. This court as a court of equity, should compel the trustee to redress this wrong (Willard’s Equity, 405 ; Davis v. Mayor, 1 Duer, 498; Milhau v. Sharp, 15 Barb. 193; Hascall v. Madison University, 8 Barb. 174 : Johnson v. Brooks, 93 N. Y. 343).</p> <p>VII. By their acts the defendants have created, and still keep, a cloud on the plaintiff’s title to this membership, and the plaintiff is entitled to the assistance of this court to remove that cloud (Costello v. Costello, 14 Fed. Rep. 207; Remington Paper Co. v. O’Dougherty, 81 N. Y. 474; Powell v. Haslett, 5 Lans. 380 ; Bruce v. Gallagher, 5 Blatchf. 481). It is evident that while the defendant Emmons holds his seat as the transferee of Mead, and the Exchange sustain him in it, and their ledger shows him to hold that seat by that title, the plaintiff could not sell this property to any advantage, or for its full value.</p> <p>VIII. The court should have granted an injunction to restrain the defendants from continuing to do the acts which are injurious to the plaintiff’s rights (Phelps v. McDonald, 99 U. S. 298 ; High on Injunctions, §§ 1230 and 1330 ; Erpstein v. Berg, 13 How. Pr. 91; First Ref. Pres. Ch. v. Bowden, 10 Abb. N. C. 1; Zillendorf v. Calkins, 23 Hun, 156; Lacustrine F. Co. v. L. S. & F. Co., 82 N. Y. 476 ; Amer. Guano Co. v. U. S. Guano Co., 44 Barb. 3; Daly v. Smith, 38 Super. Ct. 158 ; Woodruff v. Bloomfield Co., 18 Fed. Rep. 806 ; West Point Iron Co. v. Reymert, 45 N. Y. 703 ; Trevor v. Jackson, 15 Abb. Pr. N. S. 115 ; Gold & S. Tel. Co. v. Todd, 17 Hun, 548).</p>

Motion to continue an ad interim injunction (contained in an order to show cause) restraining “the defendant Franklin Edson, as mayor, and the defendant, William P. Kirk, individually, and as president of the board of aldermen, and as a member of said board, and in every other capacity, and each and every other defendant as a member of said board of aldermen, and in every other ■capacity, from appointing, nominating or confirming the nomination of any person to the office of…

This action was brought on a contract to recover the contract price for services rendered.

Appeal by plaintiff from judgment entered upon a dismissal of the complaint at trial term before a jury. The action was for damages, for the breach of .a contract to convey real estate, brought by the assignee of the vendee in the contract against the vendor. The complaint averred the making, etc. of the contract, the performance by the vendee of all conditions precedent, and the neglect and refusal of the vendee to perform on his part.

<p>Appeal by defendant, from judgment entered on verdict of jury.</p> <p>The action was for damages from the breach of a promise to marry.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>on the points decided, argued:—I. It was error to overrule the defendant’s objection and to admit the testimony in relation to the “fortune or income” of defendant’s wife, (a,) The action was not to recover property, but damages for a breach of promise, and whether defendant was rich or poor could make no difference ; as if plaintiff proved a cause of action she would be entitled to recover, regardless of whether defendant was a man of means or not. It would be error to admit the testimony in an ordinary action for the breach of a contract, and it was error to admit it in this action (Dain v. Wyckoff, 3 Sel. 193 ; Kniffen v. McConnell, 30 N. Y. 285). (b.) In any aspect in which the evidence may be looked at it was objectionable. The property of the defendant’s wife was not an issue in the case. The testimony admitted had a tendency to and did prejudice the jury against the defendant in favor of giving larger damages than they otherwise would have given, and the objection to its admission should have been sustained.</p> <p>II. The third request to charge the jury should have been charged. The defendant had the legal right to have all his actions and conduct, up to the time of and including his defense and trial, submitted to the jury in mitigation of damages, and the court erred in refusing to charge the request, as well as in the qualified charge as made. The court’s qualified charge confined the jury to a time before the breach, and took away from them the consideration of any subject, act or conduct of the defendant at the time of or since the breach. This clearly was error (Thorn v. Knapp, 42 N. Y. 481; Johnson v. Jenkins, 24 Ib. 254).</p> <p>on the points decided, argued :—The question as to his wife’s fortune put to defendant on his cross-examination was proper in various aspects. The plaintiff had a right to show all the facts and circumstances that would entitle her to large damages, whether compensatory or vindictive; that his motive for deserting her was untruthfully stated; that he was actuated by sordid motives; and that it was a base action on his part.</p> <p>The third request the court charged as requested, with the obvious and proper qualification made by the court.</p>

The order enjoined the defendant from placing in the street, in front of plaintiff’s house, a pole intended to sustain wires to conduct electricity for the purpose of light. , The facts sufficiently appear in the opinion. upon the questions discussed by the court, argued :—I. The denial of intent to do an act would not countervail, upon an application of this kind, proof that the act was, in fact, being done. The intent in such a case would be inferred from the act.

Appeal by defendant, from judgment entered on the verdict of a jury. The action was for damages, from negligence of defendant’s servants. The facts sufficiently appear in the opinion and head-notes. on the questions discussed by the court, argued :—I. An effort was made at the trial to create the impression in the minds of the jurors, that there was not, or perhaps might not have been a light upon defendant’s car, as required by a city ordinance.

Case submitted to the general term, on a statement of facts agreed to by the parties. The controversy between the parties arose under the last will and testament of John H. White, late of the city of New York, deceased.

<p>Appeal by the plaintiff from a judgment against him for costs, on a verdict rendered under the direction of the trial judge, and also from an order denying the plaintiff’s motion for a new trial.</p> <p>The facts appear in the opinion.</p> <p>I. The payment by plaintiff of the defendant’s charges for his services as surgeon, was tantamount to a former recovery. This suit to recover damages is the same, so far as the principles are involved, though not eo nomine, as a suit to recover back money voluntarily paid, and should be governed by the decisions on those subjects.</p> <p>II. A former recovery for services as a physician will bar a claim for damages for malpractice (Gates v. Preston, 41 N. Y. 113 ; Blair v. Bartlett, 75 Ib. 150 ; see also Schwinger v. Raymond, 83 Ib. 197; Davis v. Talcott, 2 Kern. 184 ; Bellinger v. Craigue, 31 Barb. 534; Dunham v. Bower, 75 Ib. 150 ; Glacius v. Fogel, 88 Ib. 441). A voluntary payment, by defendant, after suit commenced, of the whole amount sued for (as was the case here in the suit for services), is to all intents and purposes the same as if judgment had been recovered by plaintiff, and is a conclusive admission that plaintiff would have been entitled to and would have obtained judgment if his claim had been litigated, and for that reason should operate as a bar now, just as fully as if the cause had been litigated, and judgment had after trial.</p> <p>III. A party cannot recover back money voluntarily paid, with full knowledge of all the facts (Harmony v. Brigham, 12 N. Y. 109). It will be remembered that when Deeves paid the bill for services, the horse was already dead, and the bill was paid with knowledge of all the facts alleged as his cause of action in the suit now before the court.</p>

Exceptions ordered to be heard in first instance, at general term. This is an action against the defendant to recover penalties incurred by him for having in his possession, quail in April, 1884, in violation of the prohibition in sections 8 and 36, chapter 534, Laws 1879. The facts appear in the opinion.

The facts appear in the opinion. Plaintiff cannot sue upon the contract in suit in his own name. 1. Held: that unless the agent is the “trustee of an express trust,” the suit must be in the name of the principal; and also, that an agent is the “trustee of an express trust” only when he is vested with a beneficial interest under the contract, or where the contract is by its express terms payable to him.

Exception by respondent to direction of the court for judgment in favor of relator, ordered to be heard at general term in first instance.

<p> Accommodation indorser—how released from liability. </p> <p>Mere indulgence on the part of the holder of the note to the maker does not release the accommodation indorser, thotigh in the mean time the makers become insolvent; it is necessary that the holder should actually tie himself up from suing.</p> <p>Where no provision is made in the note for the payment of interest, the mere fact that upon the maturity thereof, and annually for several years thereafter, the maker pays to the payee the amount of the legal interest to date, does not operate as a bar to the recovery against the accommodation indorser, there being no evidence that such payments were made • and accepted as payments of interest in advance.</p> <p>Upon consideration of all the evidence in this case, held that the defendant, the accommodation indorser, was not released from liability by any acts or laches of the plaintiff, the payee.</p>

Appeal by defendants, from judgment entered upon a verdict of jury, in favor of plaintiff. Held: that the contract had not the effect of vesting an immediate title in Furniss, but was an agreement to sell and not a sale, and that, although the words used denoted a present transfer, a future only was intended.

Appeal by defendants from judgment entered upon verdict for plaintiff as directed by the court. On the trial, the defendants claimed the right to open and to close. The court directed that they should have the right. Before the defendants proceeded, the plaintiff’s counsel moved for judgment upon the pleadings, on the ground that the answer did not aver any defense. This motion was granted, the court directing a verdict for plaintiffs.

Appeal by defendant irom judgment, in favor of plaintiff, entered upon a decision of a judge at special term. The facts appear in the opinion. argued :—I. The statute provides for the order of the payment of the debts of a decedent, giving priority to : 1. “ Debts entitled to a preference, ■under the laws of the United States ; 2. Taxes assessed upon the estate of the deceased previous to his death,” &c. (Redf. Burr. Pr. 539).

<p>Appeal by defendant from order granting plaintiff an allowance for counsel fees and expenses ; and motion to dismiss the appeal.</p> <p>The action was for divorce, in which the defendant claimed affirmative relief.</p> <p>The facts appear in the opinion.</p> <p>argued :—I. It is the fixed policy of the courts of this state, to allow the most moderate amounts for counsel fees, especially pendente lite, in actions of this kind, and to reduce them to the actual.necessities of the case to enable the wife to prosecute, or defend, otherwise an incentive would be given to a kind of litigation which is always, as far as possible, discouraged (Williams v. Williams, 29 Wis. 517 ; Morrell, 2 Barb. 483 ; De Meli, 67 How. Pr. 53 ; Leslie v. Leslie, 11 Abb. Pr. N. S. 311).</p> <p>II. The court has authority, in an action for a divorce, to grant a counsel fee to the successful party upon the termination of the trial (Bently v. Bently, 3 Law Bull. 76, Truax, J.; De Meli v. De Meli, 67 How. Pr. 35). The Code, section 1769, authorizes the court, in its discretion, during the pendency of such an action, from time to time, to make and modify orders requiring the husband to pay money necessary to enable the wife to carry on and defend the action. This has been construed to authorize an allowance, not only before trial, but at and after trial. The action is pending necessarily until final decree (Winton v. Winton, 12 Abb. N. C. 150; Donnelly v. Donnelly, 63 How. 481 ; Green v. Green, 3 Daly, 358 ; Schloemer v. Schloemer, 49 N. Y. 82; McQueen v. McQueen, 61 How. 280). After the trial of this action is finished, and the case decided, the merits will have been determined, and the court then can award counsel fees which will be just, accordingly as the prosecution or the defense has been ascertained to have been in good faith.</p> <p>III. In opposition to the motion to dismiss the appeal, it is urged that the payment of the sum was no bar to the appeal. The order appealed from simply directs the payment, by defendant to the plaintiff, of a sum of money which he claims is altogether in excess of what it should be. He receives no benefit under the order ; it is wholly adverse to him ; no conditions are imposed in his favor which he has accepted, and the reversal of the order would present nothing but the ordinary case of the reversal of a purely money judgment (Schermerhorn v. Wheeler, 5 Daly, 472 ; Champion v. Plymouth Cong. Soc., 42 Barb. 411; Wells v. Danforth, 1 Code R. N. S. 415 ; Wallace v. Castle, 68 N. Y. 375).</p> <p>argued :— I. It appears, and was conceded, that the appellant is a man of large property, and in affluent circumstances ; that his property equals in value $200,000, and that his annual income is at least $17,000. The rule of law, that the wife should be placed upon an equality with the husband (2 Bishop Marriage & Div. § 387) is particularly applicable to this branch of these cases, because there have not in the entire history of this state arisen actions where greater efforts have been exerted, or more questionable fneans resorted to upon the part of the husband and his associates to accomplish the ruin of his wife. In view of these facts, the sum allowed to the wife to enable her to resist the charges, vigorously pressed, because of the great wealth at the husband’s command, is neither unreasonable nor immoderate (Forrest v. Forrest, 5 Bosw. 677 ; Griffin v. Griffin, 47 N Y. 134).</p> <p>II. This court, on appeal, will not modify the order of the special term, unless the amounts awarded are so excessive as to be beyond the scope of a legal discretion (Griffin v. Griffin, 47 N Y. 134 ; De Llamosas v. Same, 62 Ib. 618). The character of this litigation, and extent of the services rendered, make it proper and right that the plaintiff should receive the whole amount awarded her.</p> <p>III. In support of the motion to dismiss the appeal, it is urged that unless the defendant complied with this order, his proceeding could have been stayed and he could have been punished for contempt of court. The defendant complied with the terms of the order. A party cannot accept and act upon the terms of an order and also appeal therefrom (33 Super. Ct. 157; 4 Abb. Pr. 468; 1 Robt. 639 ; 4 E. D. S. 139). The order appealed from was in its effect a conditional order, the defendant cannot accept its terms and appeal from it at the same time (9 Q. B. 802 ; 16 L. J. Q. B. 49 ; 1 L. R. C. P. 238 ; 14 W. B. 614 ; 14 H. 7 N. S. 287 ; 5 Sand. 1). An appeal is waived by taking any benefit of the order appealed from, even if done under protest (6 Hun, 29 ; 18 N. Y. 481; 45 Ib. 201). We admit, that if the order had not in its effect been conditional, that then this motion would not be proper under the decision of 58 N. Y. 204, which held that a party who merely took steps to obtain a benefit, but who did not obtain his benefit, did not waive his right to appeal; that is not this case. The defendant had either to obey the order or take the consequences of disobeying the order, and he complied with the order. Furthermore, the order appealed from is not appealable (Green v. Green, 40 How. Pr. 465).</p>

The facts appear in the opinion. on the law on the questions considered by the court, argued :—I. The former action is a bar. The defendants in that case alleged the facts of the transaction out of which the claim arose, and set up the same contract that is involved here. The action was not tried as upon an account stated on either side. The plaintiff made the same proof that he would have made had he sued for the sale of the goods in question.

In this case it was sought to reform a deed by substituting the word “west” for “east.” One McCormick on November 1, 1852, conveyed to one Orowley a piece of land, beginning two hundred and fifty feet west of Second avenue, and running fifty feet west, taking back a purchase-money mortgage.

Appeal by defendant from an order denying his motion that plaintiff be compelled to elect one of two causes of action alleged in the complaint. The first cause of action was for damages from false representations ; viz., that a certain yacht then offered for sale by defendant to plaintiff did not leak and was sound and in perfect condition.

The complaint was as follows : “I. That on the 26th day of September, 1876, said plaintiff, being the owner in fee of all that certain lot, etc.' . . . executed and delivered to the said Horace J. Fairchild and Alvah Miller, Junior, as executors of the last will and testament of Nathaniel F. Miller, deceased, a purchase money mortgage, to secure the payment of a part of the consideration expressed in a deed from them to this plaintiff ... of the premises hereinbefore…

At some time prior to the year 1865, the city authorities acquired the building, No. 128 Worth street. It was thereafter, with permission of the city, used and occupied by the volunteer fire department. By chapter 249 of the laws of 1865, the volunteer department was abolished, and the metropolitan fire department was established in its stead.

Appeal by plaintiff from judgment overruling his demurrer to the fifth defense set forth in defendant’s amended answer to the complainant, with costs.

Appeal by plaintiff from judgment that complaint be dismissed, entered on demurrer to complaint. ‘The complaint demanded judgment against defendant, on the ground that by certain consolidations, not necessary to be specified, the defendant was liable for the obligations of the Jersey City & Albany Railway Company, and it made averments as to the obligations of that company, which are set out in the opinion. upon the questions considered by the court, argued :— I. If an agent…

Appeal by defendants from judgment for plaintiff, entered upon the verdict of a jury The action was for damages from the alleged impairment of plaintiff’s easement of- light, air' and access,… Held: that' this agreement being void, the value of the lease could not be shown for the purpose of proving the value of plaintiff’s services.

Appeal by plaintiff from order dissolving injunction that had been obtained by plaintiff.

The action was for loss upon a policy of marine insurance. There were two policies, one for $4,000 on vessel, free of particular average ; the other for $2,000 on vessel, free of particular average. Held: that while there was insurance only on the vessel there were two subjects of valuation—one, the vessel, hull, tackle, apparel, and other furniture valued at $20,000, and the other machinery valued at $20,000.

Defendants’ exceptions ordered to be heard in the first instance at general term, after a verdict for plaintiffs. On the trial it appeared that the defendant’s testator, Kendall, made a contract with one Haas, whereby he agreed to sell to Haas five lots of land in this city, for $35,000, and also agreed to lend to Haas $6,000, for each house, in installments, to be expended by Haas in building the houses on the lots.

The action was on an insurance policy which purported to insure J. T. Tobias on account of whom it may concern, in case of loss to be paid to Andrew Simonds. The subjects of insurance were the same as in the case of The Merchants’ S. S. Co. v. The Commercial Mutual Ins. Co. (ante, p. 444). The judge found and decided that the plaintiff was entitled to recover.

Appeal by plaintiff from judgment dismissing plaintiff’s complaint, entered upon a direction of the judge at trial term. The plaintiff was a steerage passenger on one of the steamships belonging to defendant, plying between Rotterdam and New York.

Appeal by defendant from order denying his motion to set aside a judgment directed by a judge to be entered upon a verdict for plaintiff.

<p>Appeal by defendants from judgment entered against them, on findings and conclusions by a judge trying the action without a jury, by consent.</p> <p>The action was in ejectment.</p> <p>The facts sufficiently appear in the opinion.</p> <p>on the question considered by the court, argued :—I. To make out his case the plaintiff was compelled to prove title in himself and in those through whom his claim of title was derived (Lamont v. Cheshire, 65 N. Y. 30; Wallace v. Swinton, 64 Ib. 188).</p> <p>II. The special term erred in finding that the premises described in the complaint were conveyed by the deed from' Benjamin Benson to his son Peter. (1) Ño title was proved in Benjamin Benson to the bed of Harlem Creek. (a) The deed to him from Simon Johnson did not purport to convey the bed of the creek; on the contrary, the premises described extended “ southerly to Harlem Mill Creek.” (b) The testimony of Mrs. Van Arsdale as to the creek was that her father (Benjamin P. Benson, son of Peter) only used the creek “the same as any body else “ for navigation“it was public “a public stream,” “like all waters are, you know.” (2) The testimony of Mrs. Van Arsdale for the plaintiff, of Mr. Brown for the defendant, and the maps, showed that the creek was salt water, within the ebb and flow of the tide, and navigable. The well-settled rule of law is, that in the absence of a public grant, private ownership of lands bounded on tide water extends only to high-water mark (Wiswall v. Hall, 3 Paige, 313; 13 Central L. J. 3 ; Morgan v. King, 30 Barb. 9 ; People v. Canal Appraisers, 33 N. Y. 465).</p> <p>III. If it be assumed that Benjamin Benson did own the creek, his title did not pass to his son Peter by the deed of his farm north of the creek. (1) That deed contained no words apt to convey the bed of the creek. The words relied upon are “including the mill-stream, mill and mill-pond, with all its privileges and appurtenances, and to shut the mill-dam at the south side of the said millpond, where it now lays.” (a) These words obviously applied to the stream and pond above the dam. The creek was known as “Harlem Greek.” A salt water creek differs materially from a “stream.” (b) These words do not relate to the bed of the creek. They were intended to confer upon Peter such right to the stream mentioned, as was necessary for the use of the mill, and nothing more, i. e., the use of. the water. (2) The right to use a stream does not imply the ownership of the bed of • the stream; and the conveyance of a stream, with no terms of enlargement, operates only to transfer the right to the use of the water (Jackson v. Halstead, 5 Cow. 216 ; Nostrand v. Durland, 21 Barb. 418 ; Wiswall v. Hall, 3 Paige, 316 ; Luce v. Carley, 24 Wend. 451; Seneca Nation v. Knight, 23 N. Y. 498 Halsey v. McCormack, 13 Ib. 296). Howard v. Ingersoll (13 U. S. R. 380), cited by the plaintiff, is not in conflict with the above. The case involved the right to use the waters of the Chattahooehe river, not any question of the ownership of the bed of the river under a grant of the river.</p> <p>IV. The deeds from Benjamin Benson to his two sons establish that the creek was treated as the division between the two farms. The argument then proceeded upon the effect of the deeds in connection with the testimony.</p> <p>on the questions considered by the court, argued I. We have absolute proof of possession, under color of title, and it is to be presumed that the possession was immemorial and uninterrupted until the commencement of this action. Even in England the general practice is to begin the title so as to show the state of the evidence for a period of sixty years (3 Blacks. Comm. 196, Sharswood ed.). Forty years is the longest limitation in this country, and possession for that period confers a perfect title (Old Code, § 75 ; People v. Arnold, 4 Comst. 508 ; People v. Van Rensselaer, 5 Seld. 291).</p> <p>II. To recover in this action it was incumbent upon the plaintiff to show either title or actual possession of the premises, at the time the defendants entered (Lane v. Gould, 10 Barb. 254). The plaintiff, at the trial, met both requirements. How much stronger than needful our proof, when “a prior possession for less than twenty years, will support ejectment against one who shows no lawful title ” (Teller v. Lorillard, 10 John. 338 ; Hopkins v. Mason, 61 Barb. 469 ; Robie v. Sedgwick, 35 Ib. 319).</p> <p>HI. The subsequent possession of defendants, when rebutted by this prior possession, which is evidence of a fee, cannot prevail (Teller v. Lorillard, supra; Allen v. Broughton, 2 Saund. 111; Bakeman v. Allen, Cro. Eliz. 437 ; Jackson v. Hazen, 2 John. 22 ; Jackson v. Myers, 3 Ib. 388 ; Jackson v. Harder, 4 Ib. 202).</p> <p>IV. The word “ stream ” in the deed of Benjamin Benson to Peter B. Benson, dated April 2, 1791, comprehends “the water,” “the bed of the stream,” together with the shores and the tide-ways, banks and everything between high and low water mark (Howard v. Ingersoll, 13 How. U. S. 426 ; Woolwich on Sewers, 51; Woolwich Law of Water Courses, 3 ; Hale De Jure Maris, chaps. IV., V.). The word stream is an apt word to convey a fee (Touchstone, 89 ; 4 Kent Com. 2 ed. 467 ; Leroy v. Platt, 4 Paige, 82 ; Comyn’s Dig. Grant, E. 11; Blaine v. Chambers, 1 S. & Rawle, 169 ; Bacon v. Bowdoin, 22 Pick. 401; Whitney v. Olney, 3 Mason, 280). To add yet greater force to the construction upon which plaintiff insists, it remains to consider together the two deeds given by Benjamin. Benson, he at the date thereof having owned on both sides of the mill stream, and the stream itself. 1st. To his son, Peter B. Benson, April 2, 1791; 2d. To his son, Sam Benson, May 2, 1791, both introduced as plaintiff’s exhibits. In the first deed, he conveys not only the northern part of the farm, but the mill, mill-stream and all appurtenances, water-courses, &c., to Peter B. He desires him to use and enjoy the mill; to do this, he gives him not only the mill but the mill-stream—the whole of it. He needs must have control of it from bank to bank. How otherwise could he make dams across ; how otherwise shut down the dam on the south side; how otherwise could he take advantage of high tides and fill his interior mill pond through the flood-gates ; how otherwise could “ he so use his own as not to injure anotherhow otherwise escape committing continued trespasses ? The intent is conclusive, the description plain. But notice the description in the second deed, “All that farm, &c., bounded as follows: beginning at black oak stump, at corner of land belonging to, etc., on .the south side of Mill Creek or Pond, running thence by various courses to drowned meadows ; thence along drowned meadows or marsh, till it comes to the mouth of Mill Creek, thence westerly along said mill creek or pond to the place of beginning, being the estate of Benjamin Benson, south of Mill Creek and Pond.” The black oak stump was on the bank—not between high and low. water ; it would not grow there. The location of this stump brings the suit at bar precisely within the reasoning of Babcock v. Utter (1 Abb. Ct. of App. Dec. 27; 1 Keyes, 115). The foregoing anthority is sustained in Smith v. Slocum (9 Gray, 36); Sibley v. Holden (10 Pick. 249); Tag v. Keteltas (48 Super. Ct. 241; affirmed, 92 N. Y. 625); Robinson v. White (42 Maine, 209). Another important feature of the latter deed to Samson Benson is, that it omits the words “meadows,” “marshes” and “water courses,” which the former deed contains. Therefore, the exclusive language of the deed to Samson Benson just as effectually interprets the intent of the grantor as the inclusive language of the deed to Peter B. Benson.</p> <p>V. Conceding that the stream was originally the property of the sovereign, yet the use of the stream for mill purposes, the dam at Third avenue from 106th to 107th . street, completely across the stream, dividing it from the pond, forming a basin on the property in controversy, the mowing of both banks for ninety.years would bar any claim of the state, would create the presumption that our grantor had received a patent therefor. Here is a case precisely in point (Yates v. Van De Bogart, 56 N. Y. 526 ; Patten v. Bigelow, Peters C. Ct. 452 ; Stevens v. Hauser, 39 N. Y. 302). It is settled that a defendant cannot avail himself of an outstanding title, which is barred by the statute of limitations—it must be a subsisting available title, on which the asserted owner might recover in ejectment (Hoag v. Hoag, 33 N. Y. 473). A mere intruder, and such is the defendant, will not be allowed to set up title in a stranger (Duncan v. Harden, 4 John. 202 ; Klock v. Hudson,. 3 Ib. 375 ; Chapman v. Del. & Lack. R. R., 3 Lans. 261). The premises of the defendants, however, are at fault; while it is true that that the court of appeals have decided in Mayor v. Hart (95 N. Y. 443), that by virtue of Pongan Charter that tideway and rivers around Manhattan Island vested in the city, subject to certain equities. It is, however, equally true the city never claimed this property; it is not in the tideway of the rivers embraced in the decision; the city permitted the' stream to be crossed with avenues, &c., for the reason “that all the inland creeks, meadows, marshes and fisheries within certain bounds therein contained were conveyed to the freeholders of Harlem by a more ancient grant, that of Governor Nichols ” (Riker's History of Harlem, 252, 271).</p>

<p> Articles to be manufactured—acceptance of. </p> <p>A bill of articles manufactured to order, was presented to the defendant, a day or two after the delivery; defendant refused to pay on the ground that they did not conform to the contract. Three or four days after this, the bill was again presented, and payment or a return of the articles demanded. Defendant refused to either pay or return—according to his testimony, on the ground that he wished to have counsel’s advice. Two or three days after this, defendant wrote a letter offering to return, but the evidence clid not show it bad been sent to plaintiff. Held, that defendant had not rescinded the contract, but had accepted the articles, and was liable for the contract price ; and that, the defenses set up not being sustained by proof, a direction of a verdict for the plaintiff was proper.</p>

Motion, made, in the first instance, at the general term to open a judgment against defendant, and to have all the issues re-tried by the referee herein.

<p>Appeal from an order overruling plaintiff’s objections to defendant’s motion for the approval and acceptance of the undertaking and guaranty given on defendant’s appeal from judgment herein, and granting said motion, and accepting said undertaking and guaranty.</p>

This action was brought to recover damages for an injury alleged to have been sustained through the negligence of the defendants. The complaint alleged that defendants carelessly . . caused and permitted a rope attached to a derrick at certain buildings, to be left hanging across the southerly sidewalk of a certain street, at such an elevation as to be a nuisance and dangerous to the life and limbs of passers-by. These allegations were denied by the answer.

<p>Appeal from judgment.</p>

Appeal by plaintiff from judgment at special term that complaint be dismissed. The action was to set aside conveyance of real estate made by defendant Tobias to defendant Abrams, alleged to have been made by defendant Tobias in fraud of her creditor, the plaintiff.

<p>Appeal from order that defendant pay alimony.</p>