Volume 2 — E.H. Smith

award of commissioners of' appraisal. For the purpose of enabling the village of Amsterdam to-provide the citizens thereof with a supply of water the legislature passed an act (Chap. 101 of the Laws of 1881) giving-power to the water commissioners, therein provided for, to obtain by condemnation the necessary lands, tenements, rights, and property. That act was amended by chap. 197 of the. Laws of 1882.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is liable, if at all, solely by reason of the provisions of the Constitution and statutes of the state of Kansas set forth in the complaint. (S. L. C. N. Bank v. Hendrickson, 40 N. J. L. 52; Seymour v. Sturgess, 26 N. Y. 134; 98 N. Y. 377; Fagan v. Strong, 17 C. P. Pep. 438; Throop v. Hatch, 3 Abb.

<p>Appeal from a judgment of the general term of the supreme <30urt, reversing the conviction of defendant.</p>

The nature of the motion and the facts relating thereto are stated in the opinion. The judgments entered in favor of petitioner’s testator were valid under the laws of Illinois, notwithstanding the previous dissolution of the corporation.

The plaintiff is a land improvement company, owning a tract of land in Queens county, called Chester Park, which, at the time of the transactions in suit, it was developing and laying out according to a general scheme, and in pursuance of which it was placing its property upon the market.

The complaint sets forth that the plaintiff is a Massachusetts corporation and that the defendant is a village organized under the provisions of chapter 291 of the Laws of the state of Mew York, passed in 1870, and the amendments thereto ; that the plaintiff carried on the business of fire insurance within the limits of the defendant, and for the privilege of so doing, and of having the protection of the water works and fire department and appliances of defendant, had paid…

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 15,1893, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>This was an action brought by the plaintiff, a foreign corporation organized under the laws of the state of Illinois to recover from the defendants, 'residents of this state, their unpaid subscription to the capital stock of the plaintiff. The defendants, beyond a general denial, set up that the plaintiff was incorporated for the illegal purpose of controlling and lirnitiug the production of vinegar throughout the United States. The trial court, upon a motion of plaintiff’s counsel,. directed a verdict in favor of the plaintiff for the amount unpaid on the subscription of the defendants, and denied the request of the defendants to go to the jury upon the question whether the company was organized for legal or illegal purposes. Upon appeal to the General Term from the judgment entered upon the verdict, that court affirmed the proceedings below. The defendants now appeal to this court from the judgment of affirmance at the General Term.</p> <p>It appearing that the plaintiff was formed for purposes illegal in this state, and was doing acts prohibited by the laws of this state to its own citizens and corporations, the plaintiff is not entitled to recognition as a corporation in this state. (U. S. V. Co. v. Schlegel, 143 N. Y. 537; People ex rel. v. C. G. Co., 130 Ill. 168.) It is the duty of the court, upon its own motion, to refuse relief as soon as it appears that the contract or transaction sued upon is void — as being either in violation of law or against public policy — even though no such defense is raised by the pleadings. (Oscanyan v. W. A. Co., 103 U. S. 261; Richardson v. Buhl, 77 Mich. 632; Russell v. Burton, 66 Barb. 539; 103 U. S. 268; Coppel v. Hall, 7 Wall. 542; Holman v. Johnson, 1 Cowp. 341.) The contract sued upon must be construed and its validity determined according to the rules of the common law, and irrespective of the statutes of Illinois or of Hew York governing stock subscriptions or corporations. If the subscription was for the purpose of forming a corporation for an illegal purpose, it is void, and the courts will consider the real purposes of the corporation, irrespective of its nominal objects as disclosed by the certificate of incorporation. (Warne v. Meyer, 38 Fed. Rep. 191; McGrew v. C. P. Exchange, 85 Tenn. 574; Montgomery v. Forbes, 148 Mass. 249; Hill v. Beach, 12 N. J. Eq. 31; M. Mills v. A. G. Co., 15 S. W. Rep. 503; J. C. G. Co. v. Dwight, 29 N. J. Eq. 242; O. R. Co. v. O. R. Co., 130 U. S. 1; In re N. D. & A. Co., L. R. 1891 [2 Ch. Div.] 505; Murfree on For. Corp. 8; S. L. C. Assn. v. Hennessy, 11 Mo. App. 555; C. R. Bridge v. W. Bridge, 11 Pet. 420; D. & P. R. R. Co. v. Litchfield, 23 How. [U. S.] 66; T. Co. v. Illinois, 96 U. S. 63.) The evident object of the formation of the plaintiff was to create a monopoly to control and limit the production of an article of necessity, and to enhance its price. The plaintiff was, therefore,, not formed for a legal or lawful purpose either at common law, by the laws of this state or by the laws of the state of Illinois. (In re N. D. Co., L. R. 1891 [2 Ch. Div.] 505; Le Warne v. Meyer, 38 Fed. Rep. 191; McGrew v. C. P. Exchange, 85 Tenn. 574; J. C. G. Co. v. Dwight, 29 N. J. Eq. 242; S. L. C. Assn. v. Hennessy, 11 Mo. App. 555; People ex rel. v. C. G. T. Co., 130 Ill. 268.) That such a combination is illegal, and that, therefore, the court will not enforce any agreement or contract for the furtherance of such illegal objects is abundantly well settled. (Judd v. Harrington, 139 N. Y. 105; People v. Sheldon, 139 N. Y. 251; M. R. C. Co. v. B. C. Co., 68 Penn. St. 173; People v. N. R. S. R. Co., 22 Abb. [N. C.] 201; Penal Code, § 168, sub. 6; Mitchell v. Reynolds, 1 P. Wms. 181; Hooker v. Vandewater, 4 Den. 349; S. Co. v. Guthrie, 35 Ohio St. 666; Leonard v. Poole, 114 N. Y. 371; D. W. W. C. Co. v. N. J. W. C. Co., 14 N. Y. Supp. 277; Strait v. N. H. Co., 18 N. Y. Supp. 224; T. S. C. O. Co. v. Adone, 45 Alb. L. J. 476; Craft v. McConoughy, 79 Ill. 346.) If the real purposes and objects of the formation of plaintiff were illegal or against public policy, it never was legally a corporation, and all acts purporting to create it such were null, void and of no effect. (Dartmouth College Case, 4 Wheat. 637; People ex rel. v. C. G. Co., 130 Ill. 168; S. C. V. M. & L. Co. v. Hayes, 76 Cal. 387; P. F. Co. v. Adler, 90 Cal. 110; W. W. W. Assn. v. Starkey, 84 Mich. 76; Chapin v. Brown, 83 Iowa, 156; Clancy v. O. S. M. Co., 62 Barb. 395; Tyle v. Yates, 3 Barb. 222; Mellis v. Clark, 20 Wend. 24; Chitty on Cont. 695; Tatum v. Kelley, 25 Ark. 209; Alford v. Rurke, 21 Ga. 46; Buck v. Albee, 26 Vt. 184; Schmidt v. Baker, 17 La. Ann. 261; Emery v. O. C. Co., 47 Ohio St. 320; Hooker v. Vandewater, 4 Den. 349; Stanton v. Allen, 5 Den. 434; S. Co. v. Guthrie, 35 Ohio St. 665; D. M. Co. v. Roeber, 106 N. Y. 473; Leslie v. Lorillard, 110 N. Y. 519; 26 U. S. Stat. at Large, 209; Penal Code, § 168; Leonard v. Poole, 114 N. Y. 371; People v. N. R. S. R. Co., 22 Abb. [N. C.] 199; M. R. C. Co. v. B. C. Co., 68 Penn. St. 173.) If the purpose of the corporation were illegal, the mere fact that corporate existence continued and business was done by the corporation for some time does not make this purpose legal, nor will the court for such reason enforce the illegal contracts. (O. R. Co. v. O. R. Co., 130 U. S. 1; P. Co. v. S. L., etc., R. R. Co., 118 U. S. 290; Thomas v. R. R. Co., 101 N. Y. 71.) There was no proof in the case of the incorporation of the plaintiff. (U. S. R. S. §§ 905, 906; 1 Greenl. on Ev. § 498; Merrill v. Tice, 104 U. S. 557; Parr v. Greenbush, 72 N. Y. 462; Water Comrs. v. Lansing, 45 N. Y. 19; Bookman v. Stegman, 105 N. Y. 621.)</p> <p>The due incorporation of the plaintiff is shown by the certificate of the secretary of the state of Illinois, under whose laws it was created. (Doris v. French, 4 Hun, 292; P. W. Co. v. Badger, 67 N. Y. 298; 2 Waterman on Corp. § 201; Morawetz on Corp. § 750; Dutchess v. Davis, 14 Johns, 298; S. B. R. R. Co. v. Hamlin, 24 Hun, 394; C. Bank v. Pfeiffer, 22 Hun, 334; 108 N. Y. 242-252; Eaton v. Aspinwall, 19 N. Y. 119; B. & A. R. R. Co. v. Cary, 26 N. Y. 78; Whitford v. Laidler, 94 N. Y. 151; Vedder v. Mudgett, 93 N. Y. 310; Craven v. E. M. Co., 21 N. E. Rep. 984; Vulcan v. Myers, 58 Hun, 161.) An agreement to take shares in a corporation about to be formed is valid, and may be enforced by the company after its incorporation without any allotment of its stock and without any previous demand for payment of the subscription. (B. & N. Y. R. R. Co. v. Dudley, 14 N. Y. 336; P. W. Co. v. Badger, 67 N. Y. 294; B. & J. R. R. Co. v. Gifford, 87 N. Y. 294; L. O. R. R. Co. v. Mason, 16 N. Y. 451; Trebilcox v. McAlpine, 46 Hun, 473; Leonard v. C. S. N. Co., 84 N. Y. 53.) The defendant’s subscription is absolute in its terms, and cannot be varied or contradicted by paroi evidence. (P. W. Co. v. Badger, 6 Hun, 293; 67 N. Y. 299; 31 N. Y. 273; B. R. R. Co. v. Dudley, 14 N. Y. 336.) The plaintiff was organized for a legal purpose, and that purpose cannot be changed into an illegal one by any acts or declarations of its promoters. (Munson v. S. G. & C. R. R. Co., 103 N. Y. 58; 143 N. Y. 537.) Assuming that the court has the right to go behind the charter of the plaintiff, and to consider all the evidence in the case for the purpose of determining the real objects of the plaintiff’s formation, still we claim that nothing of an illegal nature is shown. 3 Chand. 133; Leslie v. Lorillard, 110 N. Y. 519; People v. N. R. S. R. Co., 54 Hun, 370; Wickens v. Evans, 3 Y. & J. 318; Skrainka v. Scharringhausen, 8 Mo. App. 622; O. S. Co. v. M. S. Co., 18 Grant’s Ch. 540; D. M. Co. v. Roeber, 106 N. Y. 473; Richardson v. Buhle, 77 Mich. 632; Marsh v. Russell, 66 N. Y. 288; Marie v. Garrison, 83 N. Y. 28; Hopkins v. Ensign, 122 N. Y. 144; S. O. Co. v. Schofield, 16 Abb. [N. C.] 372; Lorillard v. Clyde, 86 N. Y. 384; Curtis v. Gokey, 68 N. Y. 304; M. R. R. Co. v. C. R. R. Co., L. R. [9 App. Cas.] 689; Ives v. Smith, 3 N. Y. 645; C. S. R. Co. v. Cushman, 9 N. E. Rep. 629; D. W. Co. v. H. W. Co., 55 Fed. Rep. 851; 121 N. Y. 628.) As against the creditors of the plaintiff, the defendant is estopped from asserting that it was formed for an illegal purpose. (Atty.-Gen. v. G. M. Ins. Co., 77 N. Y. 272; P. C. Co. v. McMillan, 119 N. Y. 46; Code Civ. Pro. § 756; P. W. Co. v. Badger, 67 N. Y. 294.) It is not error to receive the evidence, of the insolvency of the plaintiff. (P. W. Co. v. Badger, 67 N. Y. 294.)</p>

<p>1. Municipal Corporations — Repair of Streets—Regligence. A municipal corporation must guard against such dangers in its streets as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care; hut it is not chargeable with negligence in omitting to repair a defect in a street, so slight that no careful or prudent man would reasonably anticipate any danger from its existence.</p> <p>2. Defect in Sidewalk—Accident—Exemption from Liability. A municipal corporation is not chargeable with negligence when an accident which, according to common experience was not likely to happen, happens to a traveler by reason of some slight defect, in a street, from which danger was not reasonably to he anticipated — such, e. g., as a depression in the middle of a flagged sidewalk, the depth of the thickness of the surrounding flagging, caused by the removal of a small broken piece of stone, and which had existed for several years without any accident resulting therefrom.</p>

Cross-appeals from order of the General Term of the 'Supreme Court in the third judicial department, made May 14, 1895, and from the judgment entered thereon, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a verdict directed by the court, and directed the issuance of a peremptory mandamus. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The decision was a non-suit, and cannot be sustained, if on the plaintiffs’ evidence, assuming its truth and every reasonable inference in plaintiffs’ favor, they might have recovered.

<p>Evidence—Receiving stolen goods.</p> <p>Upon the trial of an indictment for receiving certain stolen goods knowing them to have been stolen, the rule that it is improper upon the trial of a party for one offense to give proof that he is guilty of another on evidence having no connection with the offense on trial, does not apply to a •case where it is difficult, if not impossible, to separate the transaction. So held, where the evidence tends to identify the goods covered by the indictment, and it appears that the proof in reference thereto justifies the inference by the jury that all the goods were taken from the same place, by the same person, at the same time, and were received by defendant from the same person at the same time.</p>

<p>1. Resulting Trust — Statute of Uses and Trusts. The provision of section 53 of the Statute of Uses and Trusts (1 R. S. 728), preserving the right to a resulting trust in cases “where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration,” is not available to the extent of the whole property conveyed, if at all, to one who paid less than the whole consideration.</p> <p>2. Resulting Trust — Statute of Uses and Trusts. The violation of a mere promise, by the alienee named in a conveyance, to take a deed in the name of another who had contributed to the consideration, is not a violation of a trust within the meaning of the provision of section 53 of the Statute of Uses and Trusts (1 R. S. 728), preserving the right to a resulting trust in cases where the alienee named in the conveyance, “in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person.”</p> <p>3. Deed to Husband —Part Consideration Paid bt Wife. In an action of ejectment to recover a life estate, subject to the defendant’s right of dower, brought by the devisee of a decedent against his widow, the defense was interposed, that the defendant at the time of the death of her husband was herself the owner of the whole estate in equity, and that her husband had no interest he could devise to plaintiff. It appeared that defendant, under a promise by her husband that he would take the deed in her name, paid a part (less than a tenth) of the consideration for the conveyance of the land, which was taken absolutely by the husband in his own name, without her consent or knowledge. Held, that the facts did not bring the wife within the provisions of section 53 of the Statute of Uses and Trusts, and that the payment of part of the consideration did not vest in her any estate in the land conveyed.</p>

The defendant is a corporation engaged in the business of distributing and selling natural gas for light and fuel in the village of Olean. The nature of the action and the facts, so far as material, are stated in the opinion. The uncontradicted evidence showing ■ the history of this pipe, its condition, etc., furnish a complete answer to the vague inferences and conclusions which constitute the theory of plaintiffs’ claim and upon which the verdict is based.

Court in the first judicial department, entered upon an order made January 19,1894, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court, and also affirmed an order denying plaintiff’s motion for a new trial. v This action was brought to recover damages for the conversion of a draft, which came into the possession of the defendant under the following circumstances: In July 1884, Mary C. Melson drew a check on the Farmers’ Rational…

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant never attached the judgment obtained by the Marine Bank of Chicago against Tunis Van Brunt, which the plaintiff in this action was desirous of legally acquiring, and it was upon the understanding that the defendant had levied upon said judgment by virtue of his attachment that the agreement between plaintiff and defendant was made.

■ Appeal from order of the General Term of the Supreme Court in the second judicial department, made December 2, 1895, which affirmed an order of Special Term denying a motion for a writ of peremptory mandamus. The facts, so far as material, are stated in-the opinion. The court below erred in denying the appellant’s motion to compel the cleric to comply with the mandate of the law. (Laws of 1895, chap. 810, §§ 56, 58, 60, 81; Fernbacher v. Roosevelt, 14 Misc.

The facts, so far as material, are stated in the opinion. The ticket of “ The Regular Democratic Party ” was illegally filled up and completed by the insertion of the names of the candidates of the Democratic party for state and judicial offices. (Laws of 1895, chap. 810 ; Fernbacher v. Roosevelt, 14 Misc.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made April 23,1895, which reversed an order of Special Term denying a motion to amend the complaint.</p> <p>The plaintiff, claiming as one of the heirs of her brother, Munroe Westcott, who died Hay 9th, 1891, seized of several parcels of real estate, in November, 1893, commenced this action for partition. In her complaint she alleges that she and the children of a deceased sister were the only heirs at law of her deceased brother. The complaint sets out a paper purporting to be the will of JVIunroe Westcott, bearing date April 9tli, 1890, and alleges that it had been admitted to probate as his will in the proper county. By this instrument the testator gives his personal property remaining after payment of his debts to his wife, Elizabeth Pope Westcott, absolutely, and after making certain specific devises, gives the use of all the residue of his real estate to her for her life, and the remainder after her death to the defendant, Cora P. Gaining, for the founding and endowment of a hospital. It is alleged in the complaint that the txvo executors named in the will, including Elizabeth Pope Westcott, are in possession of the real and personal property left by the testator, claiming possession as such and as devisees and legatees under the alleged will. The original complaint based the right of the plaintiff to bring the action upon the averments that the will was not legally published ; that the testator was incompetent to make a will; that it was procured by the fraud and undue influence of Elizabeth Pope Westcott and Cora Ganung, the executors and principal beneficiaries under the will; that it was void for uncertainty, and that its provisions were in contravention of the statute of trusts and perpetuities.</p> <p>The plaintiff joined as defendants among others the devisees and legatees under the xvill and the children and heirs of her deceased sister, and demanded judgment, declaring the alleged will to be void and that it be set aside, and that the plaintiff and her nieces, the children of her deceased sister, be adjudged to be lawful owners of the real estate left by the testator, and that partition be decreed, etc. After issue had been joined, the plaintiff made a motion at Special Term to amend her complaint, which motion has given rise to this appeal. The amendment sought was to permit her to allege, in substance, that the defendant, Elizabeth P. Westcott, for the purpose of realizing the benefits given her by the will, caused the death of the testator by the administration of poison or by other means. The Special Term denied the motion, but its order was reversed by the General Term and from the order of reversal this appeal is taken.</p> <p>Plaintiff cannot be permitted to set up the cause of action embodied in the proposed amendment. (Code Civ. Pro. § 1537.) The appellant, Mrs. Westcott, never having been indicted and convicted of the crime of murdering her husband, the testator, cannot be required, as she would if this amendment is allowed, to answer to a capital crime, without presentment or indictment of a grand jury, in violation of the guaranty of both the State and Federal Constitutions. (23 Abb. [N. C.] 453, 454.) The allegations by means of which it was attempted, by the proposed amendment, to introduce this new cause of action, are insufficient for that purpose. (23 Abb. [N. C.] 453.) .If the proposed amendment is allowed the complaint Avill contain causes of action which avIII be inconsistent with each other, and, therefore, the complaint Avould, upon its face, be demurrable. (Code Civ. Pro. § 484.) The proposed new cause of action, if introduced into the complaint, would render it demurrable because it does not affect all the parties to the action. (Nichols v. Drew, 94 N. Y. 22; Goldberg v. Utley, 60 N. Y. 427; Wiles v. Suydam, 64 N. Y. 173; Zorn v. Zorn, 38 Hun, 67.)</p> <p>The amendment desired is literally covered by section 1537 of the Code. (Riggs v. Palmer, 115 N. Y. 514; Hall v. Hall, 13 Hun, 306; 81 N. Y. 130; Code Civ. Pro. §§ 1538, 1542.) Section 1537 of the Code of Civil Procedure is not a limitation upon the power to bring partition actions by plaintiffs out of possession to the peculiar case provided for by this section. (Weston v. Stoddard, 137 N. Y. 127; Code Civ. Pro. §§ 1537, 1543.) Under section 1537 the whole question of the Avill is properly involved. We are not asking to allege a new cause of actiqn, but simply to modify the cause of action. (Hammond v. Cockle, 2 Hun, 495.) The decision of the Special Term is erroneous. (Weston v. Stoddard, 137 N. Y. 119; Collins v. Collins, 36 N. Y. S. R. 591; 131 N. Y. 648; La Tourette v. Decker, 45 N. Y. S. R. 78; Hammond v. Cockle, 2 Hun, 495; Hewlett v. Wood, 62 N. Y. 75.) The allegations added by the amended complaint involve the consideration of equitable principles only. It is a general principle that a court of equity once having jurisdiction will dispose of all questions arising in the action and prevent a multiplicity of suits. (Beach on Mod. Eq. Juris. § 22; Hosford v. Merwin, 5 Barb. 52; Scott v. Guernsey, 60 Barb. 178; Hammond v. Cockle, 2 Hun, 495; Weston v. Stoddard, 137 N. Y. 128.) The policy of the law unquestionably is to try all the issues and all possible questions of title involved in an action of partition, so that the judgment will indeed be a final one. (Shannon v. Pickell, 28 N. Y. S. R. 464; Bell v. Gittere, 30 N. Y. S. R. 219; Hagerty v. Andrews, 4 Civ. Pro. Rep. 323; 94 N. Y. 195; Weston v. Stoddard, 137 N. Y. 119.) The appellants claimed at General Term that “ in a civil action where there has been no conviction of the defendant the court would not have the right to deprive the accused of life, liberty or property.” This is untenable. (Code Civ. Pro. §§ 384, 1899, 1902, 3343; Gordon v. Hostetter, 37 N. Y. 105; Penal Code, § 710; Riggs v. Palmer, 115 N. Y. 514.)</p>

y 24, 1895, which affirmed an order of the Special Term denying relator’s motion for a writ of peremptory mandamus. [Relator had a vested right to hold his position unless removed for cause in the •manner prescribed by statute.

The facts, so far as material, are stated in the opinion. The duty placed upon the comptroller, the performance of which is sought to be compelled in this matter, is in its nature judicial and requires the exercise of judgment, and discretion. The court, therefore, had no power to direct the appellant to approve the claims in question.

The facts, so far as material, are stated in the opinion. The applicant not having been licensed at this place prior to the passage of the Excise Law, the board of excise could not grant his application.

The facts, so far as material, are stated in the opinion. If personal property of the defendant was levied on by virtue of junior warrants, the sheriff could not levy on the same property a second time, but out of the proceeds of the sale of the property seized he should satisfy the warrant first delivered to him. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no evidence even tending to show negligence on the part of the defendant. On the contrary, direct evidence was given by the plaintiff’s witness establishing freedom from negligence on the part of the defendant. The submission of this question to the jury was, therefore, error and the exceptions thereto were well taken.

The facts, so far as material, are stated in the opinion. The mortgage of Striker to Weil, and assigned to Bobert, is. still in full force and effect. (Kellogg v. Ames, 41 N. Y. 259; Lawrence v. Brown, 5 N. Y. 394; Dezell v. Odell, 3 Hill, 221; Purser v. Anderson, 4 Edw. Ch. 18; Graves v. Mumford, 26 Barb. 94; Champney v. Coope, 32 N. Y. 543; Bogert v. Striker, 11 Misc.

attachment. The facts, so far as material, are stated in the opinion. A junior attaching creditor, as-a foundation for his motion, must show that his papers are free from' defects to entitle him to any right to move to set aside a prior attachment; or, even if the papers on which the attachment sought to he set aside are defective, yet, if the papers of the moving attaching creditor are equally defective,, his motion cannot he granted.

The nature' of the action and the facts, so far as material, are stated in the opinion. The will effectually devised the land in dispute to the defendant Lamphere.

The complaint asks judgment, in substance, restraining the defendants from using a certain alley, except for the ingress and egress of themselves and persons having legitimate business with them, or the occupants of buildings upon the premises. From the allegations of the complaint, it appears that one Ulrich, owning a tract of land upon North avenue and.

Further facts are stated in the opinion, When the Constitution was enacted, and when it was adopted by the people, the civil service statutes did not reach or have any application to the appointment of veterans to positions like that here in question. (Laws of 1894, chap: 618; Laws of 1892, chap. 677, § 31.) The words “ so far as practicable ” mean, so far as is practicable for securing better administration, and for improving the civil service.

' The nature of the action and the facts, so far as material, are stated in the opinion. The act of the plaintiff in requesting the assignee to complete the contract of the assignors and his enjoyment of the performance of such contract was not a ratification of the assignment. (Bigelow on Est. [5th ed.] 455, 459, 460, 651, 683, 686; S. N. Co. v. Weed, 17 Barb. 378; Cook on Stock. § 637; Glenn v. Bergman, 20 Mo.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was a party to the condemnation proceedings and cannot maintain this action. (Laws of 1882, chap. 120, § 19; Leavitt v. Cruger, 1 Paige Ch. 421; F., etc., Bank v. Gregory, 49 Barb. 155; Foot v. Lathrop, 53 Barb. 183, 185; Ferguson v. Smith, 2 Johns. Ch. 138; Eckerson v. Vollmer, 11 How.

Plaintiff and defendants are adjoining owners of premises' in the city of New York, and derived their respective estates from a common grantor. The plaintiff’s premises are No. 826 Broadway, and the defendants’ premises No. 828 Broadway. A small, irregular piece of ground in the rear of No. 826 Broadway, which is the northeast corner of Broadway and Twelfth street, connects No. 828 Broadway, which adjoins No. 826 Broadway on the north, with East Twelfth street.

of the Supreme Court in the first judicial department, entered upon an order made December 18,1893, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was brought upon a bond executed by the ■defendant and another, conditioned for the faithful performance by the firm of Pratt & Moliesen of a contract between that firm and the plaintiff. The facts, so far as material, are stated in the opinion.

This action was brought to recover damages for the alleged wrongful discharge of the plaintiff from the defendant’s employment under a contract in writing between the parties. The facts, so far as material, are stated in the opinion. The Court of Common Pleas, at General Term, had no power to reverse this judgment on any conflict of evidence, but only on matters of law. (Meyers v. Cohen, 4 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. This action is maintainable as an action in aid of an attachment without an allegation or proofs that Davis had made default in the attachment suit, all the allegations of the complaint and the moving affidavits being accepted as true. (Code Civ. Pro. §§ 636, 638, 641, 645, 655, 708, 1671, 1672; Thayer v. Gillett, 9 Abb.

The complaint contained two counts or causes of action, one for false imprisonment and the other for malicious prosecution. Both were based upon and alleged to have arisen out of the same transaction. The answer contained a general •denial and allegations of certain facts and circumstances which were set up both as a complete and as a partial defense to the action.

The nature of the action and the facts, so far as material, are stated in the opinion. Fraud cannot be predicated upon a judgment confessed for a bona fide indebtedness in the absence of some agreement between the parties to the action whereby, the debtor reserves or is to receive some benefit.

The nature of the action and the facts, so far as material,, are stated in the opinion. The articles of association adopted and filed by the defendant gave it its corporate existence, and were a binding contract between the corporation and its shareholders. (Laws of 1851, chap. 122; Livingston v. Lynch, 4 Johns. Ch. 573; M. Nat.

<p>Appeal prom Justice’s Court — New Trial — Costs. Where the right to costs on an appeal from a Justice’s Court to the County Court, in which a new trial was had, was governed hy section 3070 of the Code of Civil Procedure as it existed from the amendment of 1885 to that of 1895, held, that the section, as amended in 1885, was to be construed as meaning that where neither party made an offer of judgment as therein provided, the party who recovered in the appellate court was entitled to costs, irrespective of the amount of his recovery there.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. By paying the costs of the judgment in ejectment entered upon the report of the referee, the plaintiff was placed in the same position as if he had brought a new action, vacating all proceedings subsequent to' the joining of issue, notwithstanding section 1011 of the Code.

This action was brought to recover of William TI. Taylor and Edwy L. Taylor, his former general guardian, the sum of $10,000.00, the amount of a legacy bequeathed to the plaintiff by the will of her brother, William H. Taylor, deceased, the father of the defendant William H. Taylor, with interest from November 30th, 1889. The defendant Edwy L. Taylor did not defend, and no judgment was entered against him.

<p>Legacy Tax—Exemption —Municipal Coepobations. The clause in the Collateral Inheritance-Tax Law of 1887 (Chap. 713, § 1) exempting from taxation thereunder bequests to “the societies, corporations and institutions now exempted by law from taxation,”, was -not intended to apply to bequests to municipal corporations.</p>

against the property of the Bankers and Merchants’ Telegraph Company, respondent.

The plaintiff sued to recover the sum of $1,200, which he claimed as a balance due him from the defendants for commissions on the sale of real estate owned by them, upon the agreed basis of five per cent on the purchase price, which' was $30,000. The defendants claimed that the agreement was that they should pay the plaintiff whatever they thought was right, and that the debt had been discharged by an accord and satisfaction.

<p>Assessment for Local Improvement — City of Buffalo — Park Paving — Connecting Streets. An assessment for paving a part of the park, under contract from the park department, in the city of Buffalo, where the park department has exclusive power to pave roads and places in the park, while the common council is in charge of streets outside the park, is not invalidated by the fact that it includes work upon streets outside the park necessary to complete the paving in the park and to furnish it with proper drainage, and to make the connecting streets and approaches safe for travelers.</p>

Cross-appeals from a judgment of the General Term of -the Supreme Court in the first judicial department, entered upon an order made January 26, 1894, which modified, and .affirmed as modified, a judgment in favor of plaintiff entered upon the report, of a referee.

.The nature of the action and the facts, so far as material, are stated in the opinion. Proof by the plaintiffs of an absolute money loss by reason of the acts of the defendants in cases of this character is not necessary in order to secure injunctive relief. (Campbell v. Seaman, 63 N. Y. 568; R. L. Co. v. S. & P. P. Co., 135 N. Y. 209; Comer v. Mackey, 73 Hun, 238; Maitland v. M. R. Co., 9 Misc. Rep. 616; Wilson v. N. Y. E. R. R. Co., 9 Misc.

This action was brought to recover damages for the defend ants’ failure to receive and pay- for certain silicate of soda under an executory contract of sale. The facts, so far as material, are stated in the opinion. The measure of damages is the difference between the contract price and the value of the commodity at the time of breach.

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

in the second judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. This action was brought to obtain the cancellation of a bond and mortgage. The facts, so far as material, are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme ‘Court in the second judicial department, entered February 26, 1894, which affirmed an order of the County Court of Westchester county denying a motion by defendant to set .aside the judgment of the County Court in the action.</p> <p>This action was brought to foreclose a mechanic’s lien.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The judgment was void, because the County Court did not have jurisdiction of the person of the defendant. (Frees v. Ford, 6 N. Y. 176; Davidsburgh v. K. L. Ins. Co., 90 N. Y. 526; Code Civ. Pro. § 340; Birdseye’s N. Y. R. S. 638, § 80; Birdseye’s N. Y. R. S. 1915, § 21; Birdseye’s N. Y. R. S. 1913, § 17; Birdseye’s N. Y. R. S. 1919; Birdseye’s N. Y. R. S. 1621, § 45; Birdseye’s N. Y. R. S. 1923, § 54.) The judgment was void, because the County Court had no jurisdiction of the subject-matter. (Risley v. P. Bank, 83 N. Y. 318.) The motion to vacate was the proper remedy. (Kamp v. Kamp, 59 N. Y. 212.)</p> <p>The affirmance of the judgment by the General Term was finally decisive of every question in the case, and was not appealable. (Code Civ. Pro. § 191; Norris v. Nesbit, 123 N. Y. 650; A. H. T. C. Co. v. Doyle, 133 N. Y. 603, 604; Pickett v. Gollner, 119 N. Y. 643; Wheeler v. Scofield, 67 N. Y. 311.) The County Court of Westchester county had jurisdiction of the action, irrespective of the place of residence of the defendant, because the land affected by the lien was situated in that county. (Laws of 1885, chap. 342, §§ 7, 8, 25; Kenney v. Apgar, 93 N. Y. 545; Randolph v. Leary, 3 E. D. Smith, 637; Const. N. Y. art. 6, § 15; Arnold v. Rees, 18 N. Y. 57; Hawley v. Whalen, 64 Hun, 552; Peck v. Dickey, 5 Misc. Rep. 95; Brown v. Snell, 57 N. Y. 286; Adams v. Ash, 46 Hun, 105; Sweet v. Flanagan, 61 How. Pr. 327; Raven v. Smith, 71 Hun, 197; Code Civ. Pro. § 348.) The order appealed from was discretionary, affects no substantial right, no appeal lies therefrom to this court, and the appeal should be dismissed. (Foote v. Lathrop, 41 N. Y. 358, 361; Schaettler v. Gardiner, 47 N. Y. 404; People ex rel. v. Brown, 103 N. Y. 684; Greenleaf v. Brooklyn, etc., R. R., 102 N. Y. 96; Code Civ. Pro. § 190.)</p>

referee. The nature of the action and the facts, so far as material, are stated in the opinion. The referee erroneously held that the defendant having received the proceeds and avails of the lumber business which accumulated after the assignment, is estopped from denying his liability to pay the balance due-plaintiff.

The nature of the action and the facts, so far as material, are stated in the opinion. The referee properly refused to find that the Palens did transfer the hemlock bark to Shults. (Borst v. Empie, 5 N. Y. 33.) The referee was-requested to find that the Palens intended to pledge to Shults, and Shults intended to receive the title to the bark as a security for his claim, and his refusal to so find presented such an error.as to call for reversal of the judgment.

The nature of the action and the facts, so far as material, are stated in the opinion. The language of the grant, properly construed, especially in view of the circumstances at the time it was made, limited the use of the water to,the Monroe Hail Works, and lapsed with the abandonment of those works.

The nature of the action and the facts, so far as material, are stated in the opinion. Injunction is a proper remedy in this action.

The nature of the action and the facts, so far as material, are stated in the opinion. The sale of real estate by either or both the plaintiffs must, together with the commissions earned thereby, inure to the benefit of both plaintiffs.

<p>1. Evidence—Handwriting.</p> <p>Before the witness should be permitted to testify to the handwriting of another, he should he acquainted and somewhat familiar with the hand writing of such person.</p> <p>2. Same—Admissions.</p> <p>Statements of the defendant, which merely raise a suspicion or conjecture-as to an alleged fact, do not amount to an admission and cannot be acted upon by the court in determinating his rights.</p> <p>3. Same—Handwriting.</p> <p>The effect of c. 36 of 1880, as amended by c. 555 of 1888, is to permit the admission in evidence of only such writing as have been proved to the-satisfaction of the court to be in 1he genuine handwriting of the person claimed to have executed the disputed instrument.</p> <p>4. Same—Irrelevant.</p> <p>Where there was no necessity for showing defendant’s physical condition, to establish the fact that he was to engage in the affray which resulted in the homicide, the court should not permit a witness, even though he has, on cross examination, testified that the defendant was sick at the time in question, to give testimony as to the particular nature and character of the disease with which he was afflicted.</p> <p>5. - Appeal—Harmless Error.</p> <p>Illegal evidence, which has a tendency to excite the passions, arouse the prejudices, awaken the sympathies or warp or influence the judgment of jurors, in any degree, cannot be considered as harmless.</p> <p>6. Trial—Charge—Intoxication.</p> <p>A charge to the jury, involving the question of the defendant’s intoxication at the time of committing the act, is erroneous, where the impression may have been left in the jury’s minds that, if the defendant was intoxicated so as to be unable to distinguish between right and wrong, the fact of' his intoxication was not to be considered by them in the determination of' his case.</p> <p>7. Same.</p> <p>Such charge is erroneous also where it does not state the rule to the jury with sufficient clearness to enable them to understand that the defendant’s-intoxication might be considered by them in determining the grade or degree of his crime.</p> <p>8. Court op Appeal—Section 528 op Criminal Code.</p> <p>The provisions of § 528 of the Code of Criminal Procedure were not intended to confer upon the court of appeals the right to disregard any valid exception taken by defendant, or to abridge any rights he formerly possessed in reviewing the rulings of a trial court.</p> <p>9. Appeal—Reversal.</p> <p>Section 542 of Code of Criminal Procedure in no way impairs or affects, the previously well established principle that the rejection of competent and material evidence, the reception of incompetent and improper evidence, which is harmful to a defendant, and excepted to, presents an error requiring a reversal.</p>

<p>1. Appeal—Opinions of Courts Below. Opinions of courts form no part of the record, and statements therein as to what the courts below did or did not pass upon cannot be considered by the Court of Appeals, unless the judgment appealed from so refers to the opinion as to make it a part of the record.</p> <p>2. Appeal—Record not Affected by Opinions. When a record, on appeal to the Court of Appeals, contains proposed findings, marked “ found” or “refused,” respectively, without any statement of the ground or reason, followed by an order and judgment of unqualified affirmance, by the General Term, containing no reference to any opinion, the state of the case is not affected by the fact that an opinion of the trial judge states that he refused certain findings because he deemed them immaterial, and the opinion of the General Term states that, owing .to a defective certificate to the case, as settled, it was precluded from reviewing the questions, of fact.</p> <p>3. Appeal—Defective Record. The power of the Court of Appeals to review is limited to such questions as appear in the record, and where the record fails to show all that was done in the court below which is material to the appeal a motion should be made to correct the record so as to cause the essential facts to appear.</p> <p>4. Findings. Where, upon the evidence in a case, part of a finding-requested is true, and another part has no evidence to support it, the trial court is justified in refusing the whole request.</p> <p>5. Refusal to Find. Error cannot he founded upon a refusal to find, unless it appears, not only that evidence was given proving the fact, but, also, that it was uncontroverted.</p> <p>6. Appeal — Consideration of Facts. No fact can he considered by the Court of Appeals for the purpose of reversing a judgment unless it appears in the findings or is requested to he found upon uncontroverted evidence.</p> <p>7. Subrogation—Volunteer. A mere volunteer or intermeddler cannot procure subrogation to the rights of another merely because he liaspaid a debt or discharged an obligation for which that person was responsible; but to entitle one to subrogation, he or his property must have been in some way lawfully answerable for the claim paid.</p> <p>8. Subrogation—Supposed Interest. As a general rule a supposed interest in property claimed to have been protected by a payment is not enough to support a claim to subrogation.</p> <p>9. Subrogation—Voluntary Payment. Where a person, in order to protect an alleged undivided interest in premises claimed to be held in common, redeems them from tax sales and brings an action against his alleged co-tenant, who claims to own the premises as an entirety and who has acquired the rights of the purchasers at the sales, to he subrogated to such rights to the full amount paid by him, and fails to prove his title, he has no interest to protect; his payment is deemed to have been voluntary, and his complaint is properly dismissed.</p> <p>" 10. Deed — Acceptance. The acceptance of a deed by the grantee thereof is as necessary to a change of title as its delivery.</p> <p>11. Deed — Delivery—Evidence. Where a deed is shown to have been executed two years before the death of the grantee named therein, the fact that it was recorded after his death is of slight importance upon the question of delivery in a case where its custody during the interval is not shown and where it does not appear by whom it was recorded.</p> <p>12. Acceptance oe Deed — Conflict of Evidence. A conflict in the evidence, relied upon as showing a delivery and acceptance of a deed executed before, but not recorded until after the death of the grantee, is raised by testimony to the effect that if the deed was delivered as claimed the grantee became the landlord of a tenant of the premises, who thereafter attorned to the holder of an adverse title in the grantee’s presence and with his implied consent.</p>

This was an action against the indorsers upon two promissory notes. The facts, so far as material, are stated in the opinion. The bank was a holder for value, within the meaning of the law-merchant, and was as such protected by the law of commercial paper. (Brown v. Leavitt, 31 N. Y. 113; F. Nat. Bank of C. v. Dean, 137 N. Y. 110; P. Ins. Co. v. Church, 81 N. Y. 218; Youngs v. Lee, 12 N. Y. 551; Day v. Saunders, 1 Abb. Ct. App.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 13, 1893, which affirmed a judgment entered upon a decision of the court at Special Term dismissing the complaint, with separate bills of costs to each of the defendants Lande and Powell.</p> <p>It is alleged in the complaint that prior to November 2nd, 1892, the plaintiff was jointly interested with the defendants, Montgomery, Lande and Powell, in certain letters patent for a railway brake that had been transferred by one Guernsey, the patentee, to a corporation known as the Hydraulic Brake Company; that on the day last named the parties so interested entered into an agreement, under seal, which apportioned their respective interests in the capital stock of said corporation, directed that a certain amount of stock be placed in the treasury for working capital, and then provided as follows: “ We also agree that the above certificates to Montgomery, Lande, Powell and Williams shall be deposited in the Central Trust Company, with a copy of this agreement, and shall not be withdrawn for the period of six months from this date, without the written consent of each and every party hereto; but with this proviso, that if sufficient treasury stock shall be sold to realize the sum of $30,000 in cash, then and in that event the stock which has been deposited in the Central Trust Company may be withdrawn by either of the parties, provided such party shall first notify the other parties hereto, in writing, at least five days before such withdrawal.”</p> <p>It was further alleged that the object of such agreement was to place all of the parties thereto upon “ an equal footing as regards the control of the said brake company for a period of six months, or thereabouts, after the stock of the company had been issued, and also to prevent any sales ” by any party to the agreement, “ of their respective holdings of ” such stock, “ unless in the meantime enough treasury stock should have been sold to realize the sum of $30,000 in cash for the use of said company; ” that said agreement had- been violated by the defendants, in that Montgomery, the president, and Powell, the vice-president and general manager of the brake company, in January, 1893, secretly issued, or caused to be issued, stock to themselves and to Lande, but not to the plaintiff, and the said Montgomery purchased, or agreed to purchase, from Lande and Powell enough of the stock to give him, with his own, control of the company, for the purpose of defeating the agreement of November 2nd, 1892, and with the effect, unless prevented, of making it impossible to sell any part of the company stock to meet its obligations and pay its current expenses; that the certificates issued to the said defendants were not delivered to the Central Trust Company, but to the defendant, the State Trust Company, together with certain agreements for the purchase of shares and promissory notes given therefor; that upon discovery of the facts, about January 24th, 1893, the plaintiff demanded performance of said agreement by the defendants, but they each refused, and he insisted, as his complaint further shows, that unless the defendants were restrained from disposing of their stock he would suffer irreparable loss. There was a demand for specific performance, an injunction, and for general relief. The action was commenced about January 26th, 1893, and was tried the 15th of May following.</p> <p>A preliminary injunction was issued, an undertaking in the penalty of $5,000 having been furnished for the purpose by the plaintiff, but it was vacated by order of the Special Term, and upon appeal to the General Term said order was affirmed. Upon the trial, before any evidence had been introduced, the complaint was dismissed on motion of the defendants on the ground, among others, that it did not state a cause of action.</p> <p>The court below erred in holding that the agreement of November 2, 1892, was in violation of the statute relating to accumulations of personal property and expectant estates therein. (Bliven v. Seymour, 88 N. Y. 478.) The complaint on its face states a good cause of action against the defendants, and was not demurrable at the time the action was begun. (Stafford v. Merrill, 62 Hun, 144; Marie v. Garrison, 83 N. Y. 14; Sanders v. Soutter, 126 N. Y. 196.) The plaintiff had no adequate or sufficient remedy at law for the breach of the agreement. (Johnson v. Brooks, 93 N. Y. 344; Express Co. v. Railway Co., 99 U. S. 200; Deiz v. Lamb, 6 Rob. 537; Christy v. Murphy, 12 How. Pr. 77.)</p> <p>Where by reason of the lapse of time after the commencement of a suit, a decree of • the court, even if granted, cannot be carried into effect, the court will dismiss an appeal. (People ex rel. v. Common Council of Troy, 82 N. Y. 575; Grow v. Garlock, 29 Hun, 598.) The object of the contract was to prevent sales of the stock for six months. Such a contract is illegal, contrary to public policy and the statutes of the state, and is void and unenforceable. (Williams v. Montgomery, 68 Hun, 416; Fisher v. Bush, 35 Hun, 641; Greenwood on Pub. Policy, 502 Moore v. Bank of Commerce, 52 Mo. 377; 1 R. S. 773, § 1.) Even if the contract were legal, so long as the parties cared, to abide by it, yet any one of them might withdraw his stock at any time. Such contracts have been repeatedly passed upon by the courts, and have been held to be revocable at the pleasure of the parties. (In re Argus Co., 138 N. Y. 557; Griffith v. Jewett, 15 Wkly L. B. 419; Hafer v. N. Y., etc., R. R., 14 Wkly L. B. 68; Woodruff v. D., etc., R. R. Co., 30 Fed. Rep. 91; Vanderbilt v. Bennett, 2 R. & C. L. J. 409; Moses v. Scott, 4 South. Rep. 742; Starbuck v. M. T. Co., 60 Conn. 553; Express Co. v. Railway Co., 99 U. S. 191; Waterman on Spec. Perf. § 34.) There is no consideration sufficient to support and enforce the agreement of November % 1892. (Fisher v. Bush, 35 Hun, 641.) There is nothing in the complaint to show that it will be of any benefit whatsoever to the plaintiff to have specific performance. (Aron v. De Castro, 13 N. Y. Supp. 372; 131 N. Y. 651; Foster v. M., etc., R. R. Co., 146 U. S. 88.)</p>

<p>1. Equity—Participation in Wrong. Where a party comes into a court of equity seeking redress for a wrong, he must be innocent of any participation therein, or, if appearing to be a participant, he must be able to sustain his appeal to the court by showing that, nevertheless, there is a justice or some element of public policy in his demand which outweighs the fact of his participation.</p> <p>3. Equity — Affirmance of Unlawful Contract. A court of equity will not determine the respective rights and interests of persons arising out of an unlawful agreement, but will leave the parties where it finds them in all cases where the action is in affirmance of such an agreement.</p> <p>3. Illegal Trust — Action by Holder of Certificates. One who, subsequently to the formation of an illegal “ trust,” acquires its certificates, containing a stipulation binding him as their holder to all the terms of the agreement on which the trust was formed, thereby becomes a voluntary participant in such unlawful agreement, and cannot, as the holder of such certificates, maintain an action in equity to secure, through an accounting and distribution by trustees engaged in perfecting a legal re-organization, profits and assets alleged to have been acquired by the trust under the agreement. A complaint which presents» this state of facts discloses an action in affirmance of an unlawful agreement, although it may allege disaffirmance.</p> <p>4. Disaffirmance of Contract. The disaffirmance of an illegal contract implies action on the part of a contractin'g party, looking to withdrawal from the guilty scheme, a repudiation of all share in it and a return of the property put into it.</p> <p>5. Executed Agreement ■—Formation of Trust. An agreement for the formation of an industrial “trust ” is to be deemed executed when the proposed combination of business concerns has been perfected, and no act remains to be done by the parties to the agreement to make it in force.</p> <p>6. Illegal Trust Agreement. The illegality of an agreement for the formation of an illegal trust taints the whole contract; and, therefore, equity will leave the parties to such agreement where it finds them, whether the agreement is executed or but partially performed.</p> <p>7. Failure of Trust Plan—Implied Valid Agreement. Where a trust plan fails through illegality, the law will not imply some valid agreement between the trustees and one who has become a participant in the unlawful scheme, which the latter can assert and ask a court of equity to enforce, the vice of illegality following the parties through their subsequent dealings and controversies.</p>

<p>Real Estate — Contract eor Conveyance — Outstanding Incumbrance— Action eor Breach. The mere fact of the existence, at the time fixed for the concurrent mutual performance of an executory contract for the conveyance of real estate, of a lien or incumbrance on the property which it is in the power of the vendor to'remove, does not relieve the vendee from the necessity of making a tender and demand of performance, as a condition precedent to the maintenance of an action to recover money p'aid on the contract, or for damages as for a breach of the contract" on the part of the vendor.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made December 18, 1895, which reversed an order of Special Term directing the receiver of the Commercial Alliance Life Insurance Company to pay appellants an allowance, fixed by the court, for their services as attorneys and counsel in the defense of proceedings to dissolve the corporation and for the appointment of a receiver.</p> <p>The order of the General Term is appealable to this court. (Snyder v. Snyder, 96 N. Y. 88; Tolman v. S. B. & N. Y. R. R. Co., 92 N. Y. 353; In re Holbrook, 99 N. Y. 543; Anderson v. Anderson, 112 N. Y. 104; People ex rel. v. Jeroloman, 139 N. Y. 14; Tilton v. Beecher, 59 N. Y. 176; Atty.-Gen. v. N. A. L. Ins. Co., 91 N. Y. 57; Meyer v. Cullen, 54 N. Y. 397; Morris v. Wheeler, 45 N. Y. 708; Lowenthal v. Lowenthal, 68 Hun, 366; Baylies on New Trials, 231.) The Special Term properly exercised discretion in granting the allowance. The rule upon which the General Term specifically bases its reversal is inequitable, unreasonable and wholly without the sanction of authority. (Barnes v. Newcomb, 89 N. Y. 108; People v. A. M. L. Ins. Co., 74 N. Y. 177; Barnes v. A. M. L. Ins. Co., 59 How. Pr. 247; 2 Daniell’s Ch. Prac. 1411, 1438; In re I. & G. Exch., 28 N. Y. S. R. 416; Atty.-Gen. v. A. M. L. Ins. Co., 100 N. Y. 279; Atty.-Gen. v. N. A. L. Ins. Co., 91 N. Y. 57.) The doctrine of the General Term is in derogation of the public policy which favors the preservation of corporate life, and seeks to avoid ás far as possible the destruction of corporations through enforced dissolutions and receiverships. (People v. A. M. L. Ins. Co., 74 N. Y. 177; Birge v. B. I. B. Co., 133 N. Y. 483.)</p> <p>The order rested in the discretion of the court below, and, hence, is not appealable.. The appeal should, therefore, be dismissed. (Barnes v. Newcomb, 89 N. Y. 115; Hitch v. Hawley, 132 N. Y. 212.)</p>

<p>Appeal from a judgment convicting defendant of murder.</p>

<p>1. General Assignment—Wages and Salaries — Preference. The preference granted by the amendment of 1886 (Chap. 283) of the General Assignment Act (Laws of 1877, chap. 466), includes wages and salaries actually, owing to former employees of the assignor at the time of the execution of the assignment, and is not limited to the wages and salaries of those in his employ at that time.</p> <p>2. Statute not Retroactive. The amendment of 1886 (Chap. 283) of the General Assignment Act is not retroactive, and creates no preference in favor of employees for wages earned before its passage.</p> <p>3. Promissory Note for Wages. The preference granted to wages of employees by the amendment of 1886 (Chap. 283) of the General Assignment Act is not nullified by the fact that the assignor had given the ■employee a promissory note for the amount of his wages.</p>

This action was brought to recover damages for false imprisonment, growing out of an execution issued against the person of the plaintiff on a judgment recovered by the defendant against the plaintiff in Justice’s Court. The defendant in his answer, as a justification, gives a history of the Justice’s Court action, setting forth the minutes of the justice, the pleadings, and all exhibits, papers and proceedings before the justice.

<p>1. Estoppel. Equity will not make an estoppel work any further than is reasonably and fairly within the intendment of the parties.</p> <p>3. Creditor’s Action—Estoppel as to Portion of Property. When a judgment creditor sues to set aside as fraudulent a conveyance made by the judgment debtor of two separate parcels of real estate, a waiver or estoppel as to one parcel will not, where the circumstances render an extension thereof inequitable, operate to prevent the maintenance of the action as against the other parcel.</p>

The plaintiff, a national bank, brought this action against the defendant, a corporation created by chapter 881 of the Laws of 1872 and engaged in carrying on a warehouse and storage business, to recover the possession of a quantity of cotton, or, if delivery could not be had, for the value thereof.

The action was brought to obtain a judgment for the return of a fire insurance, policy issued by the defendant, for the restoration of it to its original terms, for the cancellation of a settlement between the parties and for the sum of $823.72, being the difference between the amount received and the amount to which plaintiffs were entitled under the original terms of the policy. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the general term, which reversed the judgment of conviction of defendant for manslaughter on the ground of errors of law.</p>

<p>Appeal from judgment, convicting defendant of murder in the first degree.</p>

This action was brought to procure an injunction requiring defendant to restore a grade crossing and to recover damages alleged to have_ been sustained by the taking up of the same. The facts, so far as material, are stated in the opinion. The plaintiff, even as abutting owner, had rights of access to and benefits derived from the travel and use of the street in front of his projierty, and of whiph he could not be divested without com]Densation for the damages sustained.

<p>1. Excise Law—Evidence.</p> <p>The general rules of evidence, applicable to trials in criminal cases, govern an investigation of charges of misdemeanor in offering and exposing for sale strong and spirituous liquors on Sunday.</p> <p>8. Same—Burden of proof.</p> <p>In such case, the burden of proof is upon the prosecution, and the defendant is presumed to be innocent until proved guilty beyond a reasonable doubt, and no inference of guilt can be founded upon circumstances except such as naturally or necessarily follow from the facts.</p> <p>3. Same.</p> <p>If the facts and circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as evidence to support a conviction.</p> <p>4. Same—Circumstantial evidence.</p> <p>Where the evidence, in criminal cases, is circumstantial, the fact shown must not only be inconsistent with, and point to, the guilt of the defendant, but must be inconsistent with his innocence.</p> <p>5. Appeal—Appellate court.</p> <p>Where the trial court certifies to the appellate court that a reasonable doubt exists as to whether the judgment should stand, and the doubt rests upon the value of the evidence in support of the charge, it is the duty of the latter court to discharge the defendant, if such doubts exist at the close of tile proofs before judgment.</p> <p>6. Same—Circumstantial evidence.</p> <p>Though facts and circumstances proved in support of the charge are suspicious, no one has the right to say that they are inconsistent with innocence where any or all of them can exist without the commission of the offense with which the defendant is charged.</p>

This action was brought to recover damages alleged to have been sustained,by reason of defendant’s refusal to transfer a certificate of shares of its capital stock at the request of the plaintiff’s assignors. The facts, so far as material, are stated in the opinion. The defendant’s motion to dismiss should have been granted, as at the close of the plaintiff’s case the defect in his title was apparent. His vendor could transfer no better title than he himself possessed.

This action was brought to restrain the defendant from using certain buildings erected upon his lands as stables in violation of an alleged covenant prohibiting such use.

The nature of the action and the facts, so far as material, are stated in the opinion. In case of consent to the furnishing of material for his property, unless the owner has paid, his land is liable. (Laws of 1885, chap. 342, § 1; Pell v. Baur, 133 N. Y. 377; Burkitt v. Harper, 79 N. Y. 274; Miller v. Mead, 127 N. Y. 544; Schmalz v. Mead, 125 N. Y. 188; Husted v. Mathes, 77 N. Y. 388; Otis v. Dodd, 90 N. Y. 336; Nellis v. Bellinger, 6 Hun, 560; Mosher v. Lewis, 10 Misc.

The nature of the action and the facts, so far as material, are stated in t.he opinion. By construing the word issue” to mean descendants, the intention of the testator is carried out and the property held intact for the full period designed by him and allowed by the law.

The relator is a domestic corporation whose entire capital was originally invested in patent rights. Its business, during the years 1889 and 1890, consisted in licensing locally incorporated electric light companies under its letters patent throughout the United States and elsewhere, stock interests in such local companies being received from them by the relator in compensation. Further facts, and the questions presented, are stated in the opinion.

This action was brought to recover the sum of $5,000 and interest, upon a promissory note dated July 18th, 1890, and made by the defendant to its own order. The defendant admitted the making of the note ; but denied that the plaintiff was a holder for value and in good faith, and alleged that the plaintiff took the same with full notice and knowledge of the fact that it had been diverted from the purpose for, which made and delivered.

The nature of the action and the facts, so far as material, are stated in the opinion. The construction of the contract by the General Term was erroneous. (Russell v. Allerton, 108 N. Y. 288; Schouler on Bailments, § 249; Donil v. Eaton, 35 Mich. 302; Slocum v. Closson, 1 How.