Volume 2 — New York State Reporter

<p>1. Conversion—What constitutes.</p> <p>Where defendant acquired possession of money, which he deposited to the credit of a surety, at the same time knowing, that the surety’s right thereto had ceased, and that the money belonged to plaintiff, and ondemand refused to pay it over to plaintiff, such acts constitute conversion.</p> <p>2. Trust—When terminated.</p> <p>When the purpose for which a trust was created has ceased, the trust itself ceases, and the property reverts to the creator of the trust.</p> <p>3. Judgment—Eorm op—What items included.</p> <p>A judgment for a certain sum of money, being “the balance of cash on hand” and certain specified bills, includes such items only.</p>

<p>Usury—Bills and notes—When tainted with usury.</p> <p>E., a note-broker, procured for B. and P., that their notes be discounted by S. at the rate of ten per cent. E. was not the owner of said notes, and the plaintiffs were not proved to be holders of the notes for value before maturity. Held, that the notes had no legal inception until they reached S.’s-hands; and as they went into them, tainted with usury, they were entirely void.</p>

<p>Appeal from a judgment in favor of the plaintiff.</p> <p>On the 22d of May, 1879, the plaintiff, who was then sixteen months old, lived with her parents in a house situate on the south side of Ninety-fifth street in this city, and about 150 feet east of the Third avenue upon which the defendant operates its railroad. About ten o’clock on the morning of that day the mother left her house to make some purchases, leaving the plaintiff and her other children in charge of her sister, who was then twenty years of age. The children, the eldest of whom was then seven years old, were playing in the yard inclosed by a fence, the entrance to which was through a gate which closed with a hasp and hook. The mother on leaving, passed through the gate, closing it after her and fastening the hasp. At about the hour mentioned the eldest child went into the house for a slate and when she returned the plaintiff had disappeared and wandered to the Third avenue, where she was run over by one of the defendant’s cars, one of her legs being cut off two inches below the knee joint. The children had been accustomed to play in this yard and the plaintff had never stolen away from it before. At the point where the child was ran over there is a down grade. The street was clear, but the car which was behind time, was running faster than usual and could not so readily be stopped. It was also shown that there was a wagon on the track ahead of the car which interfered with the more rapid progress desired, and that the driver was endeavoring to catch up to the wagon and lift it off the track, a performance which seems-from the evidence to be sometimes resorted to by the car drivers. The evidence also seems to establish that at about Ninety-third street the wagon had wheeled off the track and that the driver and conductor of the car were looking at the driver of the wagon, who was indulging in an offensive performance when suddenly the driver slipped his brake, there was a scream and the leg of the plaintiff was cut off. She had been caught by the brake, a circumstance which seemed to have saved her life. The driver admits that he went faster after the wagon left the track, He also-admits that the wagon annoyed him and the surrounding circumstances connected with the wagon, and his being behind time and his fast driving might have prevented his seeing the child as early as he would otherwise have done..</p> <p>These are the facts which the jury were authorized to find from the evidence, which is in some respects conflicting.</p>

<p>Appeal from a judgment recovered on trial before the court.</p>

<p>Appeal from a judgment recovered on the report of a referee.</p>

<p>Appeal from a judgment recovered on trial before the-court.</p>

<p>1. Assessments—'Validity of—Laws 1872, chapter 580—Certificate of</p> <p>commissioners’ conclusive upon all parties.</p> <p>The certificate of the commissioners appointed by chapter 580 of the Laws 1872, as to a contract with the city covered by said act, that it is. free from fraud, is conclusive upon all parties for the purposes of an assessment.</p> <p>2. Same—Laws 1874, chapter 312—Laws P58, chapter 338.</p> <p>The substitution of the words- “ any fraud or substantial error” for the-words “ or legal irregularity ” in the statute of 1858, chapter 888, section 1, by Laws 1874, chapter 312, does not effect the operation of the Laws of 1872, chapter 580, in regard to the effect of certificate of the commissioners..</p>

<p>Appeal from an order that the joint or general petition herein be declared a joint or general application, constituting so many several petitions, and allowing the parties to have separate orders if the assessment should be vacated. ■</p>

<p>Appeal from a judgment in favor of the plaintiff, entered «on the verdict of a jury.</p>

• Certiorari to review proceedings of the board of docks, by which the relator was removed from the office of secretary to said board.

<p>Appeal from a judgment on verdict directed.</p>

<p>Appeal from an order in proceedings supplementary to execution.</p>

<p>1. Negligence—Master and servant—Duty oe employob—When liable EOR INJURY TO EMPLOYEE. '</p> <p>The intestate was killed while employed in the ship D. in assisting in lading flour in bags upon that vessel. A “ stool ” was constructed of bags of flour by the men upon which they stood to hoist the flour. The intestate was struck on the head with one of the slings of flour and knocked from the “ stool ” into the lower hold of the vessel through the deck, in which the hatchway had been left open, and died in a few days. ■ The • open hatchway was not directly observable-from the place where the intestate was required to work, and it is not shown that he knew its condition. Reid, that the intestate was not chargeable with negligence as a matter of law. That he could not be held to have taken upon himself Ms . exposure to this risk as one of those attendant upon Ms employment.</p> <p>52. Same.</p> <p>The employer is in duty bound to provide a safe and proper place for Ms servants to work m. The duty rests upon the employer and if he entrusts its observance to others in his employment, and they fail to discharge it, he is responsible for the injury resulting to another person in Ms service, as a consequence of such failure.</p>

<p>Appeal by the defendant Abendroth from a judgment entered on verdict directed at the circuit.</p>

<p>Appeal from order directing disposition of surplus money on mortgage foreclosure.</p>

<p>1. Pleading—Answer—How denials in the answer to be construed.</p> <p>Where it appears by the answer that each subdivision of it was to be separate and distinct as to matters to which it related, and that the denials contained in these subdivisions were made in the form and language which excluded the idea that what was first used should be added to them. It is the duty of the court to take the answer as it was framed and not to endeavor to defeat it by transposing from its introduction a statement not appearing to be designed to be annexed to, or to be used to qualify, other portions of the answer.</p> <p>5. Practice—Motion to dismiss.</p> <p>A motion to dismiss a complaint will be considered general unless the grounds are stated.</p>

<p>1. Receiver—When appointed in partition proceedings.</p> <p>Where the rents and income of property should only be collected under the authority of the court, there is but one mode through which this authority can be exercised, and that is by the appointment of a receiver.</p> <p>2. Same.</p> <p>Where an agreement provided that after the commencement of a partition suit “ the rents and income aforesaid shall be collected as the court shall direct,” a receiver must be appointed:</p>

<p>1. Practice—Supplemental Complaint—Effect of order striking</p> <p>OUT PART OF COMPLAINT AS IRRELEVANT.</p> <p>While an order is in force striking out part of a complaint as irrelevant the plaintiff will not be permitted to insert and repeat the ' allegations which have been striken out, in a supplemental complaint. The order striking out is an answer to the application to that extent.</p> <p>3. Same—Appeal—What papers and facts considered on.</p> <p>The appellate court is not to rehear the application for an order, but only to determine whether upon the papers and facts which were made to appear at the time when it was heard at the special term, it was correctly disposed of and decided.</p>

<p>Appeal from an order striking out certain portions of the plaintiff’s complaint as irrelevant.</p>

<p>Appeal from order directing notice of pendency of action.</p>

<p>Appeal from a judgment entered on the verdict of a jury.</p>

<p>1. Lease—Eor lives, presumed to be in existence till shown to have</p> <p>lapsed—New lease a nullity without such proof.</p> <p>In 1816, M., the owner of certain lands, executed a lease of them to F. for the term of the lives of three persons named and the survivor of them. In 1868, G. became the owner of lessee’s interest in said lease. In 1879, all of G.'s interest was sold to H , the plaintiff herein. Five days thereafter H. agreed in writing to sell to defendant R., who agreed to buy, the said lease for $800, payable in installments. R. entered into possession and paid as agreed until May 1, 1880. There is about $600 unpaid. Defendant D., who became owner of the fee prior to 1879, leased this same land, in October, 1880, to R. for ten years, who has since held possession under the lease of 1880. Plaintiff asks to have the lease of 1880 declared void and that defendant D. be adjudged to execute a new lease to plaintiff on the same terms: Held, that if the evidence is wanting to show a termination of the lease of 1816, plaintiff’s case must fail, because with that lease presumptively in existence, he has suffered no wrong except the non-payment of its purchase price. That the new lease would then have been a nullity, because until the termination of the old lease defendant had no t.tle which he could lease.</p> <p>2. Same—Holding title under dead lease gives no right.</p> <p>If the old lease was proved to have expired prior to 1880, the plaintiff having had nominal title to the dead lease for five days, but never being in actual possession of the premises: Held he had no right to possession and could not give a rightful possession to defendant. He could not make a valid contract to assign what did not exist.</p> <p>3. Same—Renewal, to whose benefit it inures.</p> <p>He could not by custom or otherwise have any right to a renewal of the old lease, and hence no renewal could inure to his benefit.</p> <p>4. Practice—Equity will not enforce contract void at law.</p> <p>Where the contract is so far void that an action could not be maintained at law for the money, equity cannot be invoked to establish such void contract to secure a debt which is in law no debt.</p>

<p>1. Practice—Interpleader—When service op attachment, a sufficient REASON FOR.</p> <p>Where the pleadings as a whole show the claims of the respective parties, and it is shown that it all arises out of the same subject matter, namely, the lien and equitable assignment of an attorney’s costs, belonging to Q-., upon property or debts owing from the plaintiff. Held, that it was not a matter to be determined by plaintiff at his risk whether the attachment upon this debt served upon him was valid or not. It was sufficient that the attachment of the debt was a claim upon it, and that justified his action of interpleader.</p> <p>3. Same.</p> <p>Where the parties who set up hostile claims to the same funds in the plaintiff’s hands are in court by being interpleaded, a slight defect in the plaintiff’s description of the successful one should not prejudice his claim, but the rights of the parties should be adjusted and finally settled.</p> <p>3. Same—When interpleader a proper remedy.</p> <p>Where a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims between third persons as to tlieir title to the mortgage money, lie may bring them before the court to ascertain their rights and to have a decree for a redemption, and to make a secure payment to the party entitled to the money.</p>

<p>1. Practice—Appeal—Motion to dismiss—Must state ground distinctly.</p> <p>A motion for a non-suit should point out a defect, if there is one, or advantage cannot be taken of it on appeal. Where there is any missing link of evidence necessary to make out a cause of action, which could be supplied, it must be called to the attention of the court and the adversary, so it may be remedied, or it cannot be urged upon appeal. The appellate court will not review a refusal to grant a non-suit upon a mere general objection.</p> <p>%. Same—Exceptions to evidence—Must state ground.</p> <p>Any supposed variance between the proof and the complaint must be distinctly stated and insisted upon at the trial, or such variance will be disregarded.</p>

<p>Appeal from a judgment on a verdict in favor of plaintiff and an order denying a new trial.</p>

<p>Appeal from an interlocutory judgment entered upon a ■decision of the Livingston special term, ordering a sale of real estate and distribution of the proceeds in an action to partition real estate.</p>

<p>1. Agreements between widow and heir at law—Conversion—Admin-</p> <p>istration.</p> <p>• Where the rights of creditors are not to be thereby affected, an agreement between a widow and sole heir at law of an intestate, that during the life of the widow she should have the use of certain personal property, and that after her death the heir should be entitled thereto, is legal and proper. The heir could maintain an action as administratrix of her father’s estate to recover the value of such personal property which was converted by defendant as executor of the widow.</p> <p>2. Same—Statute op limitations.</p> <p>In such a case the statute of limitations does not begin to run until after the death of the widow.</p>

<p>Contempt proceedings—Costs on sustaining demurrer to interroga-Tories—Code of Civil Procedure, §§ 3240 and 2280, construed.</p> <p>In contempt proceedings where a demurrer to certain interrogatories is sustained and to others not sustained no judgment for costs can he taxed or execution therefor issued, until the issues of fact have been determined.</p>

<p>Appeal from a decree of the surrogate’s court of Wayne county, made by the district attorney of the county, acting as surrogate, the surrogate being disqualified by reason of his relation to one of the parties.</p>

<p>Appeal from a decree of the surrogate of Erie county, settling the accounts of the administrator, and disallowing the amount of four promissory notes, upon the ground that they were barred by the statute of hmitations.</p>

<p>Husband and wife—Contract—Promissory note.</p> <p>A husband may sue his wife in a court of law to enforce a contract between them made for the benefit of the wife’s separate estate. Benedict v. Briggs (34 Hun, 94) followed.</p>

Appeal by the defendants and one William H. Halleck, as receiver, etc., from an order of the Monroe special term, permitting the plaintiff to amend his complaint.

<p>Appeal from a judgment entered in Wyoming county upon the report of a referee.</p>

<p>Motion for new trial on exceptions ordered to be heard at the general term in the first instance.</p>

<p>Deed—Description—Ejectment—Adverse possession.</p> <p>In the absence of evidence showing a location of a boundary line made between the parties or their grantors, or that a party had acquired title to the disputed strip by adverse possession, the line described in the deeds must be taken as the true line between the parties.</p>

<p>Trespass—Title—Ancient deeds—Proof of possession.</p> <p>Actual possession of a part of farm lands accompanied by constructive possession of abutting lands included in the description of a deed, raises a presumption of ownership of all the land described in the deed.</p> <p>Certain errors in the spelling of the names in an ancient deed disregarded as mere clerical errors.</p>

<p>Usury—Held not to be inferrable from certain facts stated.</p>

The action is brought to recover damages alleged to have been occasioned by the malpractice of the defendants, who are physicians and surgeons. On the 5th day of November, 1816, the plaintiff, then a small boy, while engaged with another boy teetering on a board across the fence, fell to the ground and a bone at the elbow of his arm was fractured. And on the same day he was taken to the defendants’ for treatment. They examined the arm and bandaged it.

<p>1 Taxes and Assessments—Schools—How assessments fob, must be made—Liability of trustees—Laws of 1864, chapter 555, title 7, ARTICLE 7, SECTION 68.</p> <p>The omission of school district trustees to give the notice required by the statute, when they do not adopt the valuation upon the last assessment-roll of the town is a jurisdictional defect in the proceeding and renders the assessment void and the trustees liable to the owner so assessed, whose property has been levied upon and taken pursuant to their warrant issued to the collector.</p> <p>2. Same.</p> <p>G-., the collector of a certain school district, levied upon and carried away certain property by virtue of a collector’s warrant issued to him by the trustee of said district. The trustee had assessed the value of the land, the tax on which was so levied and collected, without giving the notice required by the Laws of 1864, chapter 555, title 7, article 7, section 68. Held, that the warrant was a protection to the collector, but that the trustee was liable to the owner for the property taken, because the assessment was void.</p>

Appeal by the defendant from judgment of the Wyoming county court affirming a judgment of justice’s court. The action is brought to recover money alleged to have been obtained from the plaintiff by means of fraud.

Motion by defendant for a new trial, on exceptions taken at Erie circuit. The plaintiff’s intestate was an employe of the defendant, engaged in coupling and uncoupling cars in its yard in Buffalo, and while employed in that service his foot was caught in a frog, and he was run over by a car and killed, March 12, 1884. The plaintiff alleged that his death was occasioned without his fault, and by the negligence of the defendant, and she recovered a verdict of $4,500.

Appeal by the defendant from judgment entered on verdict of Niagara Circuit, and from order denying motion for new trial on case and exceptions. The action is brought to recover for personal injuries sustained by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. On the evening of the 9th day of November, 1871, the plaintiff was engaged as brakeman upon a train of defendants cars on its way from Bochester to Niagara Falls.

Appeals from decisions of Erie county court. The actions are brought to foreclose two mortgages made by the defendant to Kobert Hadfield, bearing date December 4, 1880. Hadfield died intestate Feb. 24, 1881, and letters of administration were issued to Lydia Connell, who after-wards assigned these mortgages and accompanying bonds to the plaintiff. One of these bonds and mortgages was for $1,000, in three equal annual payments from their date, and interest semi-annually.

This action is brought to foreclose a mortgage covering certain lands made by the appellants to the plaintiff, Thomas T. Flagler, as President of the Niagara County National Bank, “as a security for the payment of the sum of $9,000, as follows: Upon any and all promissory notes, drafts, bills, checks, orders, and paper of every kind and nature whatsoever, made, drawn, accepted, endorsed, or guaranteed by Sherman D. Hooper, or upon, or for the payment of which, he now is, or…

<p>1. Assignment for benefit of creditors—When not fraudulent and</p> <p>void—Words which do not vitiate.</p> <p>An assignment, for the benefit of creditors, made to G. B., “ his successors and assigns,” is not fraudulent and void as against creditors by reason of the use of these words. The word “assigns” is not entitled to a construction" which will give an illegitimate effect or purpose in respect to the trust created by the instrument, and the word ‘ ‘ successors ” is not necessarily an inapt one in an assignment.</p> <p>2. Same—Intent to defraud creditor—Evidence.</p> <p>Where the assignor made certain statements to a judgment-creditor just after the entry of his judgment, and on the trial of the action to set aside the assignment as fraudulent, he was asked the following question: “Was it upon these representations that you delayed proceedings on your judgment?” Held, that it was not error in the court to refuse to allow the witness to answer. The mental operation of the creditor has no value upon the question of the intent and purpose of the debtor, which was the only matter of inquiry.</p>

<p>An appeal from a judgment entered upon a verdict in the plaintiff’s favor, at the Orleans circuit, for the sum of seventy-three dollars damages and costs, and from an order denying the defendant’s motion for á new trial founded on the judge’s minutes.</p> <p>The defendant is a corporation organized- under the generai railroad act. The line of its road is located over the plaintiff’s farm, and it acquired the right of way for its road-bed of the customary width. One of the plaintiff’s fields, consisting of thirteen acres and used as a pasture, lies on the southwesterly side of the defendant’s lands and adjacent thereto.</p> <p>It was admitted upon the trial that for a period of nine weeks from the 1st day of May, 1884, the defendant neglected and omitted to erect or maintain suitable fences of the height and strength of a division fence as required by law, along the sides of its railroad across the land of the plaintiff, and that in consequence of the omission the plaintiff was deprived of the use of his said pasture lands for the said nine weeks. The plaintiff gave evidence tending to prove that his damages, resulting from the loss of the use of his pasture field, was seventy-two dollars. The defendant gave no evidence on the question of damages, and the case states that it waived the-right to go to the jury on that question, and thereupon the court directed a verdict to the jury for the sum of seventy-two dollars.</p> <p>At the close of the evidence the defendant requested the court to direct a verdict in its favor, for the reason—</p> <p>First. That the plaintiff had failed to make out a cause of action against the defendant.</p> <p>Second. That the statutory obligation imposed on the defendant to erect and maintain a fence, of the height and strength of a division fence required by law, does not give the adjacent land-owner a right of action to recover damages of the nature and character of those claimed by the plaintiff, arising from an omission to erect and maintain a fence; and that the damages which may be recovered under the provisions of the statute are limited by the terms of the statute, to injury and loss of stock entering upon the lands of the railroad company by reason of such defective fence, which shall be done by the agents or engines of the defendant while operating the railroad.</p> <p>Third. That the plaintiff had a remedy by mandamus or by action to compel the railroad company to build a fence. The motion was denied and the defendant excepted.</p>

<p>1. County—Responsibility of, for property destroyed by mob— Judge’s instructions to jury.</p> <p>The cars of plaintiff were destroyed by a mob within the limits of defendant’s county. Some hours previous to the destruction of their property, plaintiffs caused a notice of the gathering of the mob, and asking for aid, signed by the superintendent, to be served upon the sheriff of the county. The evidence tended to show all facts necessary to make out a case, charging the county with damages resulting from the action of the mob, within chapter 428, Laws of 1855. Held, no error to refuse to charge that the jury might take into consideration an admission in the notice and the presence of plaintiff’s superintendent at their yards prior to the destruction of the property when the evidence did not warrant the instruction as to the presence of plaintiffs officer.</p> <p>2. Same—Charge to jury.</p> <p>Where the general charge to the jury states fully the legal proposition in controversy, and an exception has been taken to remarks responsive to a request to charge which has been refused, this court will not speculate as to their meaning when it is not clear that error was committed prejudicial to the exceptant.</p> <p>3. Evidence incompetent—Effect of.</p> <p>Where immaterial and incompetent evidence, received against objection and exception, cannot, in any manner, prejudice the minds of the jury, its reception will not be ground for a new trial.</p> <p>4. Same—I-Ieaesay.</p> <p>Where a conductor of plaintiff was asked whether there had not been talk of a strike prior to the burning of plaintiffs cars. Held, that he could not testify as to what was generally understood, but might testify as to what the rumor was.</p> <p>5. Same—-Res gestae.</p> <p>The order of a superior officer of military forces, delivered to a captain shortly before the burning of plaintiffs cars, directing him to guard the property of plaintiff. Held, properly received as belonging to the res gestm, and as evidence that the captain came to the place by the order of the superior.</p> <p>6. Same.</p> <p>The evidence of one of plaintiff’s employees on duty near the car when burned, that he was requested to join the mob, and, on declining, was assaulted, was properly received as part of the res gestm.</p> <p>7. Same.</p> <p>The question whether plaintiff’s witness heard of any difficulties in connection with the road on the evening prior to the burning of the cars was properly excluded as hearsay.</p>

<p>Principal and agent.</p> <p>Where a party sells goods through his agent, no terms being made as to the time or mode of payment, and no knowledge of a limitation upon the salesman's authority to receive payment, being brought home tó the buyer, a payment made to him is good as against the principal.</p>

<p>1. Chattel mortgage.</p> <p>Where a mortgagee of personal property and her agent have knowledge of an unfiled chattel mortgage of earlier date, she cannot claim to be a mortgagee in good faith as against the owner of the prior mortgage.</p> <p>2. Same—Omission to file.</p> <p>The omission to file a chattel mortgage does not vitiate the mortgagee’s right against a mortgagee or purchaser with knowledge.</p> <p>3. Same.</p> <p>An unfiled chattel mortgage is good' as against all subsequent incumbrancers with knowledge of its existence except a judgment creditor.</p> <p>4. Same.</p> <p>Where a subsequent mortgagee of personal property, at the time of receiving the mortgage in good faith, and in ignorance of the existence of the prior unfiled chattel mortgage, advances money, she is entitled to the property as against the owners of the unfiled chattel mortgage.</p> <p>5. Same.</p> <p>A chattel mortgage may be a valid lien as between the parties to it, although never filed.</p> <p>6. Same.</p> <p>A chattel mortgage given for a pre-existing indebtedness, although valid as between the parties, does not constitute the mortgagee a purchaser or incumbrancer in good faith within the statute.</p> <p>7. Evidence—Competency op—Code op Civil Procedure, § 800.</p> <p>Evidence given at a former trial by a witness since deceased is rendered competent by the Code of Civil procedure, § 880.</p> <p>8. Same.</p> <p>Evidence that a judgment was recovered against the mortgagor about the time of the execution of the chattel mortgage to the defendant, competent as being on the question of good faith.</p>

<p>1. Contract—Statute or. frauds—Consideration</p> <p>The defendant in consideration of the sale and assignment of property to him by one indebted to the plaintiff and others verbally agreed to pay the debts. Prior to the commencement of Ms action the rights of all the creditors were assigned to the plaintiff. Held, that the defendant’s promise was based upon a good consideration moving from the plaintiff’s debtor. He may enforce a promise made for Ms benefit by an action in his own name. It is not within the statute of frauds, although the original debt still subsists and remains entirely unaffected by the new agreement. The promise, although by paroi, was not collateral, but an original promise, and, therefore, not within the statute.</p> <p>52. Evidence—Parol—Admissible when written instrument is silent.</p> <p>_ The assignment made to the defendant stated nothing in relation to consideration. Held, that, as the written instrument was silent, paroi evidence on that point was competent.</p>

The cause of action is set out in the complaint in these words: “That on or about the month of November, 1882, the defendant, assuming to act as an oil broker, undertook and agreed with the plaintiff to buy for him two thousand barrels of crude oil or petroleum, upon plaintiff paying to him a certain part of the purchase price, to wit: the sum of §200; and hold the same for him, and that said plaintiff should pay to defendant a certain sum per barrel, of the oil denominated…

<p>Appeal—Reeeree-Eiitoiw oe facts.</p> <p>Upon an appeal from a judgment entered upon a 'referee’s report the general term will not review the conclusion of fact found unless it appears by the record presented on appeal that all the evidence upon which the referee acted is before the court.</p>

<p>Summary proceedings—-Ejectment—Intruder—Code op Civil Procedure, § 2233.</p> <p>Where a party is in possession of land by her tenant, and a person setting np a claim to the premises through a tax deed afterwards adjudged invalid, induces the tenant to attorn to him and enters into possession of the premises, he is an intruder within the meaning of section 2232 of the Code of Civil Procedure, and may be ejected by summary proceedings.</p>

<p>1. Promissory notes—Evidence—Opinion op witness.</p> <p>In an action upon a non-negotiable note payable to the order of the plaintiff, when the defendant interposes as a defense a payment by a deceased joint maker, the testimony of plaintiff as to whether the payment was or was not made upon the note, is competent under an objection that the question is one of fact to be determined by the jury. The question is one of law and fact depending upon the facts and the intention of the parties.</p> <p>2. Same—Hearsay.</p> <p>The testimony of one having no personal knowledge of the payment is incompetent as to whether it was or was not made upon the note.</p>

<p>Appeal from a judgment entered upon the report of a referee. The action is to recover damages for personal injuries received by the plaintiff, who fell upon a sidewalk within the Emits of the village of Hornellsville, the same being out of repair and in a dangerous condition. The damages were assessed at $356.</p>

<p>Motion by the defendant for a new trial founded on exceptions ordered to be heard here in the first instance. The action was tried at the Monroe circuit and the jury rendered a verdict for the plaintiff in the sum of $13,733.33. The defendants were partners and private bankers doing business under the name and style of Stettheimer, Tone & Go. The action was on their sight draft drawn on the Importers and Traders Bank of New York, dated February 12, 1879, for the sum of $10,000, and payable to the order of the plaintiff. On due presentation the draft was dishonored. At the close of the plaintiff’s proofs the defendants moved for a non-suit and the same was denied and the defendants excepted.</p> <p>At the close of all the proofs the defendants renewed the motion upon the ground that it appeared that the plaintiff’s assignor was indebted to the firm of which he was a member, in an amount considerably larger than the amount of the draft; and upon the general ground that the plaintiff had failed to make out a cause of action. This motion was also denied and the defendants again excepted.</p>

<p>1. Assignment—Receiver.—Title to funds can not be determined bt ORDER.</p> <p>Where a trustee for the assignee of funds held by a county treasurer in an action for partition has procured an order directing the county treasurer to pay over such funds to him, a receiver of the property of the assignor subsequently appointed in supplementary proceedings can not obtain title to the funds by an order setting the prior order aside. The title to the funds must be tried by action.</p> <p>2. Costs against receiver personally.</p> <p>Where the circumstances show that such a proceeding was instituted by the receiver carelessly and without permission of the court, costs may be awarded against him personally, and there need be no affirmative motion to that effect.</p> <p>8. Same—Separate costs to parties on motion.</p> <p>In this case the county treasurer having been served with the motion papers and having appeared by counsel, costs were rightly allowed to him.</p>

<p>1. License—Implied—Unrevoked.</p> <p>Where the plaintiff has an implied license to land goods upon the dock of defendant, and this remains unrevoked, he does not commit a trespass in ordering goods to be delivered there.</p> <p>2. Common carrier—End or liability or.</p> <p>Where, pursuant to a contract made with the plaintiff, a common carrier delivered goods at the defendant’s dock, its liability as such was at an end.</p> <p>3. Conversion.</p> <p>The act of the defendant’s agent in causing the plaintiff’s goods to be transhipped from its dock amounted to a conversion.</p> <p>4. Principal and agent—Principal’s liability ror torts or agent.</p> <p>Where the defendant’s agent, acting within the scope of his agency, commits a tort, the principal is liable.</p>

<p>Appeal from judgment rendered on report of referee.</p>

<p>Appeal from judgment of the special term.</p>

<p>Appeal from a judgment recovered on the dismissal of the plaintiff’s complaint, and for the recovery of a counterclaim by the defendant of the sum of $134,494.01.</p>

<p>1. Specific performance—When court has discretion to deny.</p> <p>Plaintiff sold land to defendant near the Hudson river by a deed, in which she reserved the right of a passageway under the railroad, to he constructed and maintained always by the railroad: Held, that in view of the difficulty in constructing a useful passage under the railroad, and the inutility to plaintiffs of such passage, it was within the discretion of the court below, in the exercise of its equitable jurisdiction, to deny specific performance of defendants’ contract to construct the passage, and leave the plaintiffs to their remedy for damages for breach of covenant.</p> <p>3. Trespass.</p> <p>Defendants let the contract to construct its road to the North River Construction Company. The latter company sublet the construction of the road through plaintiffs’ premises to W. M. & Co., and they sublet a portion to O’Rourke, by whom an alleged trespass was committed: Held, that as it did not appear that the original contract could not have been executed as made without any interference with plaintiff’s land, plaintiff cannot be held liable.</p>

<p>1. Common gabbier—Railroad—When not liable fob delay caused by</p> <p>STRIKES.</p> <p>A railroad stands upon tie same footing as other carriers, and may excuse delay in the delivery of goods by accident or misfortune not inevitable or produced by the act of God. All that can be required of it in any emergency is that it shall exercise due care and diligence to guard against delay, and to forward the goods to their destination; not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so.</p> <p>2. Same.</p> <p>Defendants had undertaken to convey a number of cattle belonging to plaintiff, within a reasonable time, over its railroad to Buffalo, and had all the necessary cars, locomotives and employees tó make up and manage its trains, but was prevented from proceeding immediately in consequence of a portion of its employees striking and refusing to run the train, or to permit others to do so. Held, that there was no default on the part of defendant, as it had employees who were ready and willing to manage its train and carry forward its stock, and thus perform its contract, but they were prevented by mob violence, which defendant could not by reasonable efforts overcome.</p> <p>3. Same—Where strikers were discharged employees.</p> <p>And the rule is not changed by the fact that the mob was made up of men who had been in the employ of the railroad, as they had left that employment and ceased to be in any sense its agents, for whose conduct it was responsible, and had become a mob of vicious law-breakers.</p>

<p>1. Appeal—When cannot be taken from order general term quash-</p> <p>ing a writ of certiorari—Code Civtl Procedure, § 2137.</p> <p>An order of the general term, quashing a writ of eertiorm'i issued to the State Board of Equalization, is not reviewable by this court, unless the court, in making the order, had refrained from exercising its discretion in passing upon the question presented, and had quashed the writ upon the ground of a want of power to issue it, or had granted it in a case not authorized by law.</p> <p>2. Taxation—State board of equalization.</p> <p>There must from necessity, reside somewhere the power of making a final disposition of questions of value for the purposes of taxation, and the state lias made the judgment of the members of the state board of equalization, the ultimate determination of such value; and a court has not the power to substitute its own opinion for that of the tribunal specially authorized by law to form and declare one.</p> <p>3. Consideration in deed not competent evidence of value.</p> <p>No rule of law requires the true consideration paid upon a transfer of land to be inserted in conveyances of real estate, and the amount is often determined by fanciful, capricious and arbitrary considerations, which render it utterly unreliable as evidence of value.</p>

<p>Exceptions tó be heard in the first instance at the general term.</p>

<p>1. Practice—Cóntbmft—Attachment for—What necessary before ORDER FOR CAN BE MADE—ON WHOM ORDER FOR MUST BE SERVED.</p> <p>Upon the return day of an order directing the defendant to appe-r and he examined as a witness, an application was made in his behalf to dismiss it. The decision was reserved from the 6th to the 14th of November by the justice presiding. On the 14th the motion was denied, and an" ■ order was then made requiring the defendant to appear on the 19th of November, pursuant to the preceding order for his examination. This second order was served on the attorney of defendant. Held, that an order of attachment i^ould not issue to bring defendant into court for contempt for disobeying the second order without the personal service upon him of the said second order and at the same time exhibiting to him the original. ■</p> <p>2. Same—Service of order to show cause, out op state a nullity.</p> <p>The service of the order to show cause why he should not be punished for disobeying the two orders out of the state of New York was a nullity and did not give the court authority to proceed.</p>

<p>Appeal from a judgment recovered on the report of a referee.</p>

<p>Certiorari to inquire into the cause of the dismissal of the relator.</p>

<p>Appeal from order denying'motion to vacate attachment.</p>

<p>Appeal from judgment of the special term.</p>

<p>Appeal from judgment of the special term.</p>

<p>Appeal from judgment of special term.</p>

<p>Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from an order vacating an order of arrest, and from an order reducing the bail, and from an order denying resettlement of. an order.</p>

In the years 1880 and 1881 the defendants, George H. Kennedy and William J. Hutchinson, were partners under the firm name of Kennedy, Hutchinson'& Company; their business was that of buying and selling stocks and other securities, and in carrying the same for their customers on a margin.

<p>1. Executors and administrators—Failure of an executor to pat over MONEY AS REQUESTED BY THE TERMS OF A DECREE, IS PUNISHABLE AS a contempt—Code of Civil Procedure, g§ 2552, 2554, 2555.</p> <p>The surrogate has power to punish an administrator for contempt for failure to pay an amount allowed to special guardian by and under a decree.</p> <p>2. Same—Affidavit of his inability to pay of no value.</p> <p>The fact that upon the return day the administrator submitted an affidavit, in which he sought to purge himself of the contempt, the chief element of which was that he had no money or property of his own from whic.i he could pay the sums awarded, furnishes no reason for setting aside the order. The averment of his inability to pay is of no value.</p>

<p>Aebest—Bankruptcy—Effect of stipulation.</p> <p>A stipulation by plaintiff that “ no additional or further arrests will be made, or any action to collect the debt except in bankruptcy on their part, in respect to or upon the claim or debtforthe recovery of which this action is brought,” is equivalent to an agreement, if not to confine the prosecution of the claim to the proceedings in bankruptcy, at least not to resort to allegations of fraud to maintain the action.</p>

<p>Brokers—Agent—Commissions, -when earned .</p> <p>Plaintiff sued for commission for leasing property. The testimony-showed that he saw M., of the firm of M. & K., who afterward died suddenly before any arrangment had been made; that after M's death all plaintiff did was to call at the hotel for the purpose of seeing whether the hotel people would renew the negotiations. The properly was rented for a less amount than he undertook to rent it, and there was a change of owners before the lease was executed. Held, that the complaint was properly dismissed.</p>

<p>Appeal from a judgment entered on the decision of the court at the Wayne equity term.</p>

<p>1. Executors and administrators—Will—Power of sale.</p> <p>Where a will devises the use of all testator’s estate to his wife and son during life, the management and control of the property to be vested in the wife so long as she is competent, and then in his executors, who are directed to use the net income for the benefit and support of his wife and son; and the executors are further directed, after the death of the wife and son, or within a reasonable time thereafter, to sell and dispose of the property, and distribute the proceeds thereof equally among the testator’s children: Held, that the will gave the executors no estate in the land, but a mere power of sale.</p> <p>3. Same—Equitable conversion—Waiver.</p> <p>A direction in a will to convert real estate into money impresses it with the character of personal property, but a conveyance by a legatee of his interest in real estate under the will is a waiver of the conversion of the land into money.</p> <p>3. Accounting—-Ratification.</p> <p>Where an interested party is present at an accounting by an administrator, in the absence of proof to the contrary he will be presumed to have knowledge of the presence of items in the account, in the distribution of the balance of which he is a participant.</p>

<p>1. Receiver—Commissions of—Contract with regard to.</p> <p>Where a party having been appointed as receiver of an insolvent corporation acts in that capacity, and his appointment is subsequently vacated, the parties stipulating that he shall be protected, and it is agreed, upon his removal, that his commissions shall be fixed by reference, and in consideration of certain premises contained in an agreement one of the parties agrees to pay the commissions, he becomes personally liable thei'efor.</p> <p>3. Same—Estoppel.</p> <p>He cannot object to the amount of the receiver’s commissions, when they are fixed according to a prior agreement made by himself.</p> <p>3. Same—Agreement—Enforcement by order.</p> <p>As the agreement was made in the action by parties thereto, it can be ensorced in the action, and a separate suit need not be brought.</p> <p>4. Same—Appointment of—Estoppel—Counsel fees.</p> <p>Parties to a stipulation that a receiver acted as a receiver of the court and shall be protec.cd, cannot question the validity of his appointment. Such a stipulation includes the allowance of a reasonable sum for counsel fees.</p>

<p>Appeal from judgment entered on a verdict directed by the court at the Wyoming circuit, and from an order denying a motion for a new trial upon the minutes.</p>

<p>1. Surrogate’s court-jurisdiction of.</p> <p>Where proceedings for the probate of the will of a deceased person are commenced in the county in which he resided at the time oí his death, the surrogate of that county acquires exclusive jurisdiction.</p> <p>2. Same—Appeal.</p> <p>An order made by a surrogate dismissing, conditionally, proceedings for the probate of a will affects a substantial right and is appealable.</p>

Appeal.from a judgment upon a verdict for the defendants ordered by the court at the Monroe circuit, and from an order denying a motion for a new trial on the minutes.

<p>1. Forcible detainer—action for—Section 1669 of the Code of Civil , Procedure.</p> <p>Where it is admitted upon the trial of an action for treble damages under section 1669 of the Code of Civil Procedure, that the defendant was in possession of premises during a stated period; and it is further admitted that at a date during that period the plaintiff visited the' premises to take possession; that thereupon the defendant attempted to eject her, and went away, leaving her upon the premises; and that subsequently the plaintiff retired from the premises, the defendant remaining in possession, the action will not lie.</p> <p>2. Admission on trial, effect of.</p> <p>The admission of the continuance of defendant’s possession during the ■ entire period is conclusive.</p> <p>3. Possession—Trespasser —use of force against.</p> <p>The defendant, being in possession, might lawfully use the force necessary to maintain it.</p>

<p>1. Water-course—Diversión of water from—Damages.</p> <p>Where the proof shows that the defendant, by the withdrawal of water from the stream upon which the plaintiff's grist mill was situated, decreased the grinding capacity of said mill, the plaintiff is entitled to compensatory damages.</p> <p>3. Same—Evidence.</p> <p>It was error to exclude the plaintiff’s offer of proof that before the defendants first took water from the stream, the period of low water in the creek, during which mills situated thereon could not be run, was but a few days in the year, and that since the defendants began to take the water, there had been a constant increase in the period during which the mills could not be run to their full capacity.</p>

<p>Appeal from a judgment entered on a report of a referee.</p>

<p>Appeal from an order made by the trial judge upon his nfinutes, setting aside a verdict rendered at the Erie circuit in favor of the defendant, and granting a new trial, with costs, to abide the event.</p>

<p>1. Contract—Assent.</p> <p>Where, in negotiating for the purchase of goods there is an uncertainty as to the price demanded, and the defendant orders a quantity of the goods, not specifying any price, a shipment of the goods, accompanied with an invoice setting forth a price, will be regarded as settling the uncertainty; and in the absence of the return of the goods by the defendan or a demand that the price as stated in the invoice be corrected, the contract will be held complete.</p> <p>2. Same—Satisfaction.</p> <p>After a return by the plaintiff of the defendant’s check as insufficient, a retention of it, with notice that it will be applied on account, will not be regarded as a satisfaction of the claim, but a payment pro tanto merely.</p>