Volume 2 — Silvernail Court of Appeals Reports

Motion by plaintiffs to dismiss appeals taken by the defendants from the judgment in this action, entered upon an order of the general term of the supreme court in the first judicial department, and from two orders of said general term, made May, 13, 1887, one of which denied a motion for reargument of the appeal, and the other of which modified a previous order of the general term granting costs against the defendants and making the costs payable out of a fund in the hands…

<p>1. Question of fad.—Where the evidence as to the terms of an alleged' oral agreement is conflicting, the refusal of the referee to find as-requested by the defendant, is not an error of law, but the question is one of fact.</p> <p>2. Deed. Covenant.—A covenant in a deed to fulfil and perform all the-conditions of a certain specified contract to be performed by the grantor, and at all times to indemnify said grantor against the same, is not a mere personal one to indemnify the grantor, and does not come within any of the exceptions to the general rule-laid down in a series of decisions of the court of appeals.</p>

<p>1. Negligence. Contributory.—The plaintiff, in an action for injuries alleged to have been caused by defendant’s negligence, is bound to establish his own freedom from negligence contributing to the accident producing the injury of which he complains; and if he fails to do so, he is properly nonsuited.</p> <p>2. Same'.—Where, in such an action, the plaintiff’s testimony showed that he approached the railroad crossing, driving at the rate of about ten miles an hour, that a strong wind was blowing and it was snowing very fast, and that he was acquainted with the crossing and knew that trains were frequently passing, the plaintiff was chargeable with contributory negligence.</p>

<p>Criminal law. Indictment.—Where, on presentation of a charge for assault and battery during the lifetime of the assaulted person, the grand jury failed to find an indictment, it is not necessary to obtain leave of the court, under section 270 of the Code of Criminal Procedure, before submitting to the grand jury a complaint charging the defendant, after the death of the injured person, with the crime of manslaughter in the second degree for the same assault, and an indictment based thereon will be sustained.</p>

Action brought by plaintiff, as the owner and occupant of Pier 41, North River, in the city of New York, to recover damages for injuries to said pier alleged to have been caused by the scows and boats of the street cleaning department. Appeal from a judgment of the general term of the supreme court, entered upon an order, affirming a judgment entered upon a verdict, and denying a motion to set aside the verdict and grant a new trial.

Action' to recover damages for the breach of an alleged contract on the part of defendant to deliver a quantity of iron pipe. The defensé, among other things, was that defendants, in making the contract, acted simply as agents for the Reading Iron Works. Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of the plaintiff, entered upon a verdict, and an order denying a motion for a new trial.

Action to set aside certain deeds as fraudulent. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the defendant entered upon an order dismissing the complaint.

<p>Trials. Jury.—An action based, in form and substance upon contract, express or implied, to recover a sum of money only, and no other relief is sought, must be, under section 968 of the Code, tried before a jury.</p>

<p>1. Appeal. Findings.—The finding of the trial judge, on controverted evidence, affirmed at the general term, concludes the court of appeals.</p> <p>2. Arbitration. Parties bound by.—Where the questions of fact and of law are submitted to the determination of an umpire, his award, in the absence of corruption or misconduct, cannot be assailed on account of any honest error, either of law or fact, in the proceedings before him or in his conclusion; the parties are bound by his award.</p> <p>3. Evidence.—In an action to set aside an award as to the value of a lot of land, on the ground of misconduct on the part of the umpire, where the alleged misconduct was that the umpire disregarded the evidence as to the value, and substituted, and declared his intention to substitute, a rule of his own, evidence offered by plaintiff as to the value of the lot, and as to the character and competency of her witnesses before the umpire, is properly excluded, as such evidence has no bearing whatever upon the only issue on trial.</p>

<p>Appeal. Court of appeals.—After an appellant has perfected his Appeal to the court of appeals by filing and serving his notice of appeal and the requisite undertaking, the supreme court is not authorized to require the filing of a new undertaking, and dismiss the appeal for non-compliance with the order. The court of appeals alone has jurisdiction.</p>

Action to recover rent alleged to be due under a lease from plaintiff to defendants of certain premises in the city of New York. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the plaintiff entered upon a verdict, and an order denying a motion for a new trial.

<p>Appeal from an order of the general term of the supreme court, reversing the judgment in favor of plaintiff, rendered at special term, and granting a new trial.</p>

<p>Appeal from an order of the general term of the supreme court, overruling exceptions ordered to be heard in the first instance at the general term, and directing a judgment entered on the verdict, in favor of the defendants.</p>

<p>1. Appeal. Order granting new trial.—Where there were issues of fact tried and questions of fact submitted to the jury, and the motion for a new trial does not appear to have been based solely upon exceptions or questions of law, an appeal from an order of the general term affirming a special term order granting the motion for a new trial, does not bring anything for review to the court of appeals.</p> <p>2. Same. Judgment absolute.—The court of appeals, instead of dismissing the appeal, affirmed the order, and directed judgment absoluto against the-appeliant.</p>

<p>1. Criminal Law¡ Appeal.—A failure to make an objection and take proper exception, deprives the defendant of his claim, as matter of right, to a reversal of the judgment. But under the amendment of 1887 to section 528 of the Code of Criminal Procedure he can only-ask that the court will determine upon the whole case the question whether justice requires a new trial or not, or whether the verdict is against the weight of evidence or against law. In such case the court is vested with power, in its discretion, to disregard the neglect and review the case upon the merits.</p> <p>2. Same. Credibility of defendant.—The fact that defendant was on trial for a capital offense, and his admissions of former arrests, convictions and imprisonments maybe considered by the jury as bearing on his credibility as a witness.</p> <p>3. Same. Evidence.—Evidence of the commencement of the history of the relations existing between the defendant and the deceased which finally culminated in the shooting, is proper.</p>

Action to recover back a payment made by plaintiff to defendant upon the execution of a contract for the sale by the latter to the former of an unexpired term of a lease, of certain premises situate in the city of New York. Appeal from a judgment of the general term of the superior court of the City of New York, affirming a judgment in favor of the defendant, entered upon the report of a referee.

Action to recover damages for personal injuries alleged to have been caused by defendant’s negligence. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the defendant entered upon an order dismissing the complaint.

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the defendant, entered upon a decision of the court.</p>

Action to foreclose a mechanic’s lien for work, labor and materials done and furnished under a building contract. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of plaintiff entered upon the decisions of the court.

<p>1. Negligence. Railroad Crossing—One who approaches a railroad cross. ing, must, before crossing, look both ways, when looking will do any good, and must cross only when he perceives that it can be done without danger of coming in collision with a train then within sight or hearing. There is no special distance within which this looking must be done, but each case must necessarily depend largely upon its own facts.</p> <p>2. Same.—A failure for a second or two to look a third time up the track does not necessarily make a driver of a team at a crossing guilty of negligence as a legal proposition, and render it proper to take this question from the jury.</p> <p>3. Same. Signals—The giving of the signals required by law does not, .under all circumstances,render the company free from negligence, If it runs its train at an undue, and what may be found to be, an improper and highly dangerous rate of speed through a village or city more or less densely populated.</p>

<p>Action to recover damages for delay in the delivery of a boiler shipped to the plaintiffs from Boston.</p> <p>Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of plaintiff, entered upon a verdict.</p>

<p>1. Appeal. Time.—The one year,prescribed by section 1325 of the Code, is an absolute limitation, and begins to run from the time the final judgment is entered, and the roll filed. No notice of the judgment or its entry is necessary to set the time running.</p> <p>S. Same. Waiver.—The respondent’s attorney, after immediately returning the notice of appeal served on him with a statement endorsed thereon, that it was returned because the appeal was not taken within the required time, is not bound to continue to return all the papers thereafter served upon him,and does not waive his objection by retaining copies of the printed case, which no act of his has caused or induced the appellant to print.</p>

<p>Action brought by judgment-creditors of a firm to set aside an assignment made by surviving members of the firm for the benefit of creditors.</p> <p>Appeal from a judgment of the general term of the court of common pleas in and for the city and county of New York, affirming a judgment in favor of defendants, entered upon a decision of the court.</p>

<p>Appeal from an order of the general term of the superior court of the city of Buffalo, affirming an order of special term granting leave to amend the complaint.</p>

Action to recover the purchase price of a quantity of cloth alleged to have been sold and delivered to defendant. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of plaintiff, entered upon the report of a referee.

Action to recover damages for a breach of an alleged contract for the purchase by plaintiff, and sale by defendants, ■of a quantity of lumber. Appeal from a judgment of the general term of the supreme court, reversing a judgment in favor of defendants, ■entered upon the report of a referee, and ordering a new trial.

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the plaintiff entered upon the report of a referee.</p>

<p>Appeal from an order of the general term of the supreme court, reversing an order of the surrogate’s court, dismissing the petition of an administrator.</p>

Motion to dismiss an appeal from a judgment of the general term of the supreme court, reversing a judgment in favor of the plaintiff, and directing judgment dismissing the ■complaint.

<p>Appeal from an order of the general term of the superior court of the city of New York, affirming an order of the special term directing the issue of a writ of mandamus.</p>

<p>1. Appeal. Findings.—Since the practice has been changed, and the proposed findings must be presented at the submission of the case, the court of appeals must, for the purpose of construing the findings, look at all of them, both the general and the special findings, and, if they are in conflict, must attempt to reconcile them. If, after such an attempt, this court finds them irreconcilable, then the appellant is entitled to take the findings most favorable to him.</p> <p>2. Evidence. Section 829.—Where the plaintiff claims that her husband had wrongfully taken her stock which he held as trustee for her, and had transferred it to his father who took it with notice of such trust, his testimony on behalf of plaintiff, in an action brought by her against his deceased father’s estate for a conversion of said stock, as to a transaction between the witness and the deceased concerning the same, is incompetent under section 829 of the Code, as a recovery would relieve him to that extent from responsibility for said stock.</p>

This is an action to set aside an award. The answer set up the award as a counterclaim. The trial court dismissed the complaint, and gave judgment for the defendant on the counterclaim. Appeal from a judgment of the general term affirming a judgment entered upon a decision of the special term.

<p>Appeal from a judgment of the general term, affirming a judgment entered upon the report of a referee.</p>

<p>1. Appeal. Befusal to find.—The refusal of the trial judge to find certain facts as requested, where no exception is taken thereto, is not the subject of review in the court of appeals.</p> <p>2. Deed. Fraud-—Where the sons prepare a deed of valuable real estate and procure their aged parents to execute it, without consideration under a misapprehension of its contents, the conveyance will be set aside at the suit of the grantors.</p>

<p>Appeal from an order of the general term, reversing an order of the special term.</p>

The complaint shows that one George S. Moulton died intestate on the 8th of June, 1882 ; that letters of administration upon his estate were duly issued in Connecticut, where he resided at the time, and subsequently ancillary letters were granted to the plaintiffs bjr the surrogate of the ■city and county of New York ; that they as such administrators deposited with the Marine Bank of the city of New York $50,000, and received a certificate therefor, payable to the order of…

<p>Pleadings. Demurrer. Joinder of actions.—Several creditors of a common debtor, who have been defrauded by similar, though not the same, representations, cannot unite in a common action to recover damages for the deceit; and where the objection appears upon the face of the complaint, a demurrer on this ground' is well taken.</p>

<p>1. Pleadings. Amendment.—An amendment of the complaint, which withdraws a portion of a credit therein admitted, does not introduce a new cause of action, and may he granted upon the trial in the discretion of the referee.</p> <p>2. Same. Effect of reversal.—The reversal of a judgment, after an amendment to the complaint was allowed upon the trial, does not, in the absence of any order or direction to that effect, reverse the order granting the amendment, and the new trial is necessarily to be had upon the amended pleadings.</p> <p>3. Appeal.—The fact that the evidence complained of may be disregarded without, in the least, affecting the result, is a sufficient answer to all objections urged, on appeal, against its admission.</p> <p>4. Statute of limitations. Trustee.—Where the question whether the defendant’s testator held certain bonds as plaintiff’s trustee was submitted to the jury for their determination, and the fact was so established, the courts below were right in holding that the statute of limitations did not constitute a defense.</p>

<p>This action was brought to recover for the services of a stenographer rendered upon the arbitration of certain controversies between one Heath and others. The attorneys for Heath had, by an agreement with him, a lien upon whatever should be received, and agreed to pay the stenographer’s fees. An award was made, and the attorneys assigned their interest therein to defendant, and the assignment was delivered to one Loomis on his promise, among other things, that defendant should pay said fees. The trial court found that Loomis was the agent of the defendant in the transaction, and that the latter was bound by the agent’s promise. The question on appeal was simply as to whether there was any evidence to support this finding.</p> <p>Appeal from a judgment of the general term of the superior court, affirming a judgment entered upon a decision of the court.</p>

<p>Motion to transfer case from the calendar of the court of appeals, second division, to the calendar of the court of appeals.</p>

<p>1. Calendar. Preference.—An action to compel a railroad corporation to pay interest coupons on bonds issued by another railroad corporation, by reason of an agreement of consolidation of the two corporations and the covenant between them, is not an action founded upon a note or other evidence of debt for the absolute payment of money, within the meaning of subd. 8 of section 791 of the Code, and is not entitled, under such section, to a preference upon the calendar.</p> <p>2. Same.—The fact that two corporations differ in their construction of a mutual agreement, and, in the meantime, neither fulfills its obligation to the holder of its securities, furnishes no reason why the court, in its discretion, should give it a preference upon the calendar.</p>

Motion to compel the defendant to file a new undertaking with sufficient sureties as required by law, on the ground that one of the sureties to the original undertaking had become insolvent, or in case of failure the appeal be dismissed. The appellant asked that, in case the court decided to require a new undertaking, it be simply for costs.

<p>1. Referees. Power of court.—Where the report of a referee does not contain separate findings of law and fact, and the findings contained therein are so commingled with what appears to be the opinion of the referee, that it is difficult in some respects to distinguish the one from the other, it is within the power of the supreme court to set aside the report and the interlocutory judgment entered ex parte thereon; and whether it will set them aside is a matter of practice resting in its discretion, with the exercise of which the court of appeals cannot interfere.</p> <p>2. Same. Correction of errors.—If the referee commits any errors of law or of fact, they cannot be corrected by a motion at special term to set aside the order of reference and all proceedings thereunder, but the orderly method prescribed by law for correcting them is by appeal from the judgment entered upon his report.</p> <p>3. Same. Practice.—The court should, after setting aside the report and interlocutory judgment, have sent the case back to the referee that he might complete the trial thereof so far as he could go, and so far as the parties desired him to go, so that both parties would have the benefit of the trial, and the expenditure that has been thus far incurred.</p> <p>4. Same. Misconduct.—Where the referee has, in fact, been guilty of any misconduct, or if, for any sufficient reason, he is an- improper person to proceed with the trial, the court has jurisdiction to vacate the order of reference, and to appoint a new referee to proceed de novo.</p>

<p>1. Court. Discretion.—The court has power, in the exercise of its discreuion, to make an order1, at circuit, cancelling the clerk’s minutes of the trial and substituting others in their place; and also an order, at special term, opening and amending the judgment-roll and prescribing the form of an amended judgment, which was directed to be entered nunc pro tunc.</p> <p>2. Same. Belief.—Where it was stipulated on the trial that counsel should agree between themselves as to the figures which it would be necessary to insert in the verdict for the plaintiff, or, if they could not do so, that the evidence as to the interest and value of the property should be taken before the judge, without the jury, before the entry of judgment, which was subsequently done and the verdict and judgment entered in precise conformity with the agreement of counsel and the requirements of law, the only relief against the judgment to which the defendant is entitled is by an appeal therefrom.</p>

<p>Appeal from an order of the general term of the supreme court, affirming an order denying a motion to vacate the satisfaction of judgment; in. the action to the extent of the attorney’s costs. .</p>

<p>1. Statute of limitations.—Where, in an action for an accounting for moneys entrusted to defendant’s testator for investment, the only-evidence presented was a letter from such testator to plaintiff,, which acknowledged the receipt of the money and stated that it was-, drawing interest and that he would invest it, if he could find opportunity, unless plaintiff should desire to use the money, the relation of the plaintiff to the decedent was that of simple contract creditor, and not that of a beneficiary under a trust; the amount was payable at - once, and the statute of limitations then began to run; and the fact that it bore interest did not prevent the statute from beginning to operate.</p> <p>2. Contract. Special.—The court or jury may infer a promise, where a. relation exists between two parties, involving the performance of certain duties by one and the payment therefor by the other; but, where a recovery is sought for the breach of an express, special agreement, such promise must be established by affirmative proof, or by evidence-of its recognition in the acts or conduct of the parties.</p> <p>3. Same. Presumption.—Where it appears that the supposed debtor was, at all times during his life, able to pay, and so in the habit of paying his debts that at his death his estate was left unencumbered, and that during much of the same time the creditor was, if not in pecuniary embarrassment, at least contending with a limited and narrow income, it cannot, after the death of the former, be presumed, upon doubtful evidence, that the latter was constantly discharging joint obligations, trusting to the dilatory repayment of the co-obligor. The presumption in such case is that the latter’s ready money payments were made upon his own, and not upon joint, account.</p> <p>4. Same. —Where the contract, alleged as the foundation of a claim for support, maintenance and lodging, is, in any reasonable view of the evidence, utterly unproven, and there is evidence that no agreement of a pecuniary nature relating to the claim was ever made or contemplated by the parties, and the facts are only consistent with a voluntary and satisfying beneficence, the circumstances, of membership in plaintiff’s family on intimate and familiar footing, etc., taken in themselves or in connection with any other facts in the case, are insufficient to create a cause of action.</p>

The facts submitted were as follows : First, One Abraham Dowdney from March 25, 1881, to April 19, 1883, was the owner of a certain lot of land, situated in 'the nineteenth ward of the city of New York, and while he was such owner the board of aldermen of that city, on the 6th day of December, 1881, “in accordance with the provisions of chapter 335, Laws of 1873 (New York •City Consolidation Act of 1882, §§ 74, 75, 878, 879, and 86), subdivision 9, duly passed an ordinance…

<p>1. Promissory note.—In an action on a promissory note, a prima facie case is made out for the plaintiff, where the signature on the note has been proved by a witness who is familiar with the handwriting of the alleged maker, and testifies to his belief that it is genuine,' or where it is substantially admitted.</p> <p>2. Same.—After such prima facie case is made out, unless there is some evidence given on the part of the defendant which legitimately tends to show that the note is not genuine, the prima facie case upon this point is not disturbed, and there is no issue of genuineness to be submitted to the jury.</p> <p>3. Evidence. Forgery.—Evidence that a note may have been obtained from the maker under such circumstances as would have rendered it void, ‘has no bearing upon the issue or defense of forgery.</p> <p>4. Witnesses. Adverse party.—The defendant by taking the testimony of plaintiff before, and reading it on, the trial, does not thereby make the plaintiff his witness, and is not bound by the evidence.</p> <p>5. Evidence. Suspicion.—Mere suspicion is not enough to warrant the submission of the question of forgery to the jury,</p> <p>6. Same.—In an action on a promissory note, where the defense of forgery is set up in the answer, evidence that it was the custom of the alleged maker of the note to sign instruments some little distance below the last of the writing, is of the vaguest and weakest possible nature, even if it is strictly admissible.</p> <p>7. Same. Declaration.—The subsequent will of the alleged maker of the note, not offered for the purpose of putting in evidence an instrument containing a genuine signature of the alleged maker with which to compare the signature to the note, was a declaration or act of the maker with which the plaintiff had nothing to do, and was properly excluded on the offer of the executor.</p> <p>8. Same. Incompetent.—And the fact that the said will contained no provision for the payment of the note in question was incompetent evidence against the plaintiff.</p> <p>8. Same. Oral evidence.—Evidence of an oral agreement is proper, when given, not for the'purpose of proving a substantive agreement not in writing, but for the purpose of showing what was the consideration of the written instrument upon which the action was brought.</p>

<p>1. Board-of claims.—The commissioners of the board of claims, in estimating damages to land, under chap. 205 of Laws of 1885, must personally view the premises alleged to have been damaged, and must base their award upon the knowledge derived from that view and the evidence of the witnesses.</p> <p>2. JReview of their award,.—The court of appeals is not deprived, by the fact that the commissioners must to some extent act upon their personal view of the premises, of its power to review their award upon the question of damages, when they adopt some erroneous rule of damages or their findings are, or the case upon all the evidence is, such as to show that they misconceived the facts and erred in their estimate. ■</p>

<p>Appeal from a judgment of the general term of the New York common pleas, affirming a judgment entered upon a verdict.</p>

<p>Appeal from a judgment of the general term, reversing a judgment dismissing the complaint.-</p>

<p>Appeal. Finding of fact.—Where the case does not state that it contains all the evidence given upon the trial, the appellate court must assume that there was sufficient evidence given to sustain the findings of fact, even though it was of the opinion that the case does not set forth sufficient evidence for this purpose.</p>

<p>Determination of jury conclusive.—The court of appeals is bound by a jury’s; determination of a question of fact, upon conflicting evidence, especially where the trial judge has denied a motion for a new trial, and the general term has affirmed such order and the judgment, entered upon the verdict.</p> <p>2. Questions of fact.—The defendant’s negligence and plaintiff’s contributory negligence, in an action for personal injuries, are, upon conflicting evidence, questions for the jury.</p>

This action was brought by a minister of the Methodist Episcopal Church, to recover an alleged balance of salary due him as defendant’s pastor. The case is reported, on a former appeal, in 97 N. Y. 119. Appeal from a judgment of the general term, affirming a judgment entered upon an order nonsuiting the plaintiff on the trial.

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of the plaintiff entered upon the decision of the court.</p>

<p>1. Savings bank. Relation with depositor.—The relation between a savings bank and a depositor, even though the deposit is expressed to be for the benefit of a third person, is that of debtor and creditor, and the same relation exists between the bank and the executor of the depositor, or of the beneficiary.</p> <p>2. Same. Election of remedies.—If, after a demand of the deposit, the bank pays the money to a wrongful claimant, the. executor of the beneficiary must elect whether he will sue the bank or the. claimant. If he sues the claimant for money received to his use, he thereby adopts and ratifies the payment to the claimant, at least if he prosecutes the action to judgment, and cannot afterwards, even though unsuccessful in collecting the judgment, maintain an action against the bank.</p> <p>See Note at end of this ease.</p> <p>3. Same.—In case the money had been left on special deposit with the bank for plaintiff’s testatrix, the plaintiff could have exhausted his remedies against the claimant, and, if unsuccessful, would not, it seems, have lost his remedy against the bank.</p> <p>4. Same. Appeal.—The defense that the executor of the beneficiary has adopted and ratified the payment of the deposit by the savings bank to the claminant, must be set up in the answer ; but, where all the facts relating to such defense are proved without objection and found by the trial court, and are sufficient to constitute the defense, the objection that the answer is defective is unavailable on appeal to the court of appeals.</p>

<p>Appeal. Stipulation.—An appeal to the court of appeals from a general' term order granting a new trial solely upon the questions of fact, with stipulation for judgment absolute in favor of defendant in case the order should be affirmed, brings up nothing for review, and the-proper practice is to affirm the order instead of dismissing the appeal.</p>

<p>1. Contracts. Statutes of frauds.—Where there was no existing debt or obligation until it was created by the contract, and the consideration moved directly from the plaintiff to the defendants, and consisted in tire waiver of his legal right to an accounting, his consent to the continuance of business and employment of the estate property for the benefit of defendants, and the removal of an obstacle to the appropriation by them of such property to their claims against the estate, it is a valuable and sufficient consideration within the authorities, and constitutes the undertaking of the defendants an original promise.</p> <p>2. Same.—A contract construed by the court to be an absolute and unconditional undertaking by the defendants to execute their bonds, etc.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report, of a referee.</p>

The plaintiff held in his hands the sum of f808 then due from him upon a contract that he had entered into with one-Jennie L. Graves. At the same time the defendant, Martha McDonald, who is the mother of said Jennie L. Graves, claimed said sum as the assignee of the latter’s interest in said contract, and had brought an action against the plaintiff to recover the same.

<p>3. Pleading. Answer. Denial.—An answer, which, after admitting some of the allegations in, denies, upon information and belief, the rest of, the complaint, is sufficient to put plaintiff to the proof of all the allegations of the complaint, except those admitted by the answer.</p> <p>2. Evidence. —Where the plaintiff rests his case and announces that his cause of action will stand upon the insufficiency of the answer and its verification, an answer to his question upon cross-examination, as to who was the legal adviser of defendant’s testator, has no relation to his cause of action, and is properly excluded in an action brought to recover for professional services rendered by plaintiff to such testator.</p> <p>3. Dismissal op complaint. When need not be made.—When the defendant sets up a counterclaim on account of money loaned to plaintiff, and demands an affirmative judgment therefor, and, if proved, will be entitled to it in the action, the complaint should not be dismissed until defendant has had an opportunity to introduce his proofs upon this branch, and he is not bound" to move for a dismissal of the complaint, in order to entitle him to such a disposition of the case by the referee.</p> <p>4. Referee. Power to open a case.—The referee has the same power as the court upon the trial of an action to open the case, after the evidence is closed and the case submitted to him.</p> <p>5. Same. Cancellation, of note.—After a note is admitted in evidence under a counterclaim setting it up, its cancellation and tender are unnecessary, and the opening of the case for this purpose can work no harm or benefit to either party.</p>

<p>1. Contract.—Where a contract gives defendants the option to rescind upon plaintiff’s failure to pay as therein specified, his failure to so pay after demand of payment and notice of an election to annul the contract, violated the contract, and he cannot thereafter enforce i.t.</p> <p>2. Same.—Even though the plaintiff had the right to require the defendants to continue the contract after such failure of payment', he had no right to make his payment of arrearages, when demanded, conditional upon the assumption and continuance of such contract by an independent corporation, though all or some of the defendants were stockholders and trustees in the new company in connection with other persons.</p>

This action was commenced on the 29th day of May, 1888, by the service of a summons on the defendant, and on the same day an order of arrest was issued in the action against him, by virtue whereof he was taken into custody by the sheriff. On the 31st day of May, plaintiff’s attorney was requested to call at the office of John J. Adams, an attorney-at-law, and in pursuance of such request, he went there and met the defendant in the custody of the sheriff.

<p>. Will. Undue influence.—A change in a testator’s will, even though unaccounted for, presents no ground for contest, unless brought about by-fraud or deceit, or an influence unfairly exercised, so that the words, though the words of the testator, represent the mind of another person.</p>

<p>Attachment.—Where the affidavits, upon which the attachment was issued, show the existence of the statutory conditions, the court below has jurisdiction, and an order refusing to vacate it is not reviewable in the court of appeals.</p>

<p>Appeal from an order of the general term, which affirmed an order of the surrogate, appointing a general guardian of the estate of an infant.</p>

<p>Appeal from a judgment of the general term, affirming a judgment entered upon the report of a referee.</p>

<p>_Evidence. Damages.—In an action for withdrawing water from a stream, evidence that, after the division, there was less water in the stream during the summer months than before, is relevant, and its exclusion error.</p>

In October, 1879, the mortgagors being in default, the mortgagees commenced a foreclosure of the mortgage. On November 6,1879, this action was discontinued, the bond and mortgages cancelled upon payment of $260, and a reconveyance of the premises made.

In the accounts, the guardian charged his ward with moneys paid for her board. The surrogate found that nothing, in fact, was ever paid by the guardian for board. The ward lived in the family of her stepfather, who was the father of the guardian.

This action was brought to recover damages for alleged negligence. Defendant employed one Fish to work as a mason on and to superintend the construction of a chimney attached to an engine-house. Fish was authorized to employ such laborers as he chose. Among those employed was plaintiff. Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict, and denying a motion for a new trial.

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict.</p>

<p>Appeal from a judgment of the general term, affirming a decree of the surrogate.</p>

This action was brought to recover damages for alleged negligence causing the death of plaintiff’s intestate. Appeal from a judgment of the general term of the city court of Brooklyn, affirming a judgment entered upon a verdict, and an order denying a motion for a new trial.

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a decision of the court.</p>

<p>1. Fraud. Sale.—Where a creditor purchases the stock of Ms insolvent debtor, in good faith, for an amount about equal to its value, and pays to Mm, in money, the difference between the indebtedness and the consideration, such sale or transfer is not void, and it is not error for the judge to refuse to charge, on the trial of an action for conversion of the goods under execution against tbe vendor, that, “if any interest in the property was reserved to the debtor or some benefit secured to him, with the knowledge- of the creditor, then the conveyance is void; ” nor to refuse to charge that, “if, as apart of the understanding or agreement on which the bill of sale was made, a sum of money was given to the debtor by the creditor for his personal use and for his benefit, then the conveyance is fraudulent and void.”</p> <p>2. Witnesses. For the purpose of descrediting the testimony of a witness, it may shown by Ms cross-examination, without the production of the record of his conviction, that he has been convicted of a crime, or that he has been imprisoned upon the conviction of a crime, or that he had committed a crime.</p>

This action was brought to recover the value of certain personal property alleged to belong to plaintiff, and to have been converted by defendant, the property formerly belonged to one Tully. Plaintiff claimed title under a chattel mortgage executed by him ; and defendant claimed under a subsequent bill of sale executed by him, the purchase price of which was credited on an indebtedness of Tully to defendant.

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee.</p>

<p>1. Principal and agent. Authority.—Where the only authority an agent has, is to complete a purchase, and take the deed in the principal’s name, this gives him no power to add anything to the consideration named in the contract, or to attach any new condition to the delivery of the deed.</p> <p>2. Same. Evidence.—The rule that the evidence of a witness, whose interest is adverse to the party calling him, may be credited in part and rejected in part, has no application to a case, where an alleged agent is the only witness on the question of his ageney, and, if his evidence that he had no authority to bind the defendant is rejected, there is nothing to support any finding to the contrary.</p> <p>3. Same.—Where the plaintiff seeks to recover upon an agreement made by him with defendant through the latter’s alleged agent, the case must fail unless there is affirmative proof of his authority to act for the defendant.</p>

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of defendants.</p>

<p>1. Contract. Construction.—Where defendants agreed to sell plaintiffs’' stock, and, after deducting all expenses and commissions, to divide the profits, and thereupon contracted with an agent to go to England to attend to such sale, for one half of their interest and profits, who employed a broker to make the sale, the compensation to the agent is not, but the commissions to the broker are, expenses within the meaning of the contract.</p> <p>2. Appeal. Beviewable.—Findings of fact, made by the trial judge upon conflicting testimony and supported by evidence, and confirmed by the general term, are not open to review in the Court of Appeals, but must be accepted as final for the purposes of the appeal.</p> <p>• 3. Same. Presumption.—Where the trial is before the court without a jury, it will be presumed, in support of the judgment, that such additional facts were found and considered, though not written out in the formal decision, as, having the support of sufficient evidence appearing in the record, tend to sustain the findings formally made.</p>

<p>Appeal from the general term of the supreme court, affirming judgment entered upon a verdict.</p>

This action was begun in September, 1863, in the New York superior court, to have a deed set aside as fraudulent. The plaintiff died in 1877, while the action was pending, and nothing was done till 1888, when this motion was made to revive and continue the action. The motion was denied, and on appeal to the general term the order was affirmed.

<p>Master and Servant.—The master is not responsible to an employee for the carelessness of competent co-employees.</p>

<p>Evidence. Hearsay.—On the trial of an action for injuries to a well caused by the explosion of a torpedo, a witness cannot be permitted to testify that some one told him that one of the torpedoes was exploded just. below the surface of the rock, and so injured the well.</p>

<p>1. Railroads.—Where a railroad is built by lawful authority, a party who is not an abutting owner upon the street through which it runs, nor has any property rights therein, has no right to complain of its existence, or of any damage caused thereby.</p> <p>2. Same. Embankment.—Where a city has the right and power to construct an embankment in the street, it can authorize the company to construct it, and the latter will have the same immunity from damages as the city would have in case it had built the same.</p> <p>3. Same.—The company, having the authority of the statute and of city ordinances for what it has done, is not liable to the plaintiff, unless it has violated some right of his, inviolably protected by the constitution.</p> <p>4. Same. Rule of Damages.—In case the company was liable, the plaintiff was not entitled to recover for the permanent diminution in the value of his lots, but was entitled only to recover such damages as he sustained prior to the commencement of the action.</p>

Cross-appeals from a judgment of the general term of the supreme court, modifying and affirming, as modified, a judgment entered upon the decision of the Court.

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict.</p>

<p>Appeal from a judgment of the general term, affirming a decree of the surrogate admitting a will to probate.</p>

This action was brought to recover from the original defendant, the present defendant’s testator, for services alleged to have been rendered under a contract in writing. Appeal from a judgment of the general term, affirming a judgment entered upon the report of a referee.

This was a proceeding under the statute to establish a claim held by plaintiff against the administrator of his father’s estate. Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee.

<p>1. Evidence. Accomplice.—The provision of section 399 of the Code of Criminal Procedure is complied with, if there is some evidence fairly-tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of the accomplice. Whether the evidence is sufficient corroboration of the accomplice, is for the determination of the jury.</p> <p>See note at end of this case.</p> <p>2. Same. Other forgeries.—Upon the trial of an indictment for forgery,. it is competent for the prosecution to prove the uttering by defendant, of other forged checks upon other occasions, not for the purpose of ' showing other crimes than that charged in the indictment, but for the-purpose of showing his guilty knowledge and intent in uttering the-, check in question.</p> <p>3. Criminal law. Fictitious name.—Where the defendant is indicted by-several fictitious or alias names, and his true name is discovered upon the trial, and inserted in the indictment and other proceedings, though they may, with propriety, have been omitted in the administration of the oath to the jurors and witnesses subsequently, their repetition, in such case, is not error, and it cannot be assumed that any legal harm was thereby done to the defendant.</p> <p>4 Same. Pronouncing judgment.—Where, after the rendition of a verdict of guilty, the defendant, at the request of his counsel, was remanded until a day named, to enable him to make a motion for arrest of judgment and for a new trial, but no motion was, on the day named or during the term, made by either party, and defendant was brought up for sentence at the next term of the same court, and judgment was moved, which was opposed on the ground that the court had no-jurisdiction, it may be fairly assumed that the defendant, by not appearing, or offering to appear, on the day named, and by not objecting, waived the delay, within the meaning of section 472 of the Code-of Criminal Procedure, and that the court had not lost jurisdiction to pronounce judgment on a subsequent day.</p>

<p>1. Assignment for creditors.—In anacfcion by an assignee for creditors to set aside a transfer of firm accounts, he must show, in order to enable him to maintain the action, that the accounts belonged to the firm and not to one of the partners.</p> <p>2. Evidence.—The testimony of a witness that the assignors transferred to a third person a list of accounts, is inadmissible, where it does not appear that he had the slightest knowledge on the subject, or that his opinion even was based upon any fact other than the presence of the list on the books of the vendee.</p> <p>3. Same. Account books.—Parol evidence of the contents of, or the absence of entries in, account books, or an examination or result thereof without producing them, is inadmissible.</p> <p>4. Appeal.—The general term will refuse to review questions of fact based upon conflicting evidence, in relation to which no exception lies, unless the case contains the statement that all the evidence is returned.</p> <p>6. Same. Exception.—An exception filed to a finding of fact can only mean that it is intended to bring up the question of law that there is not any evidence to sustain the finding. In such case, the respondent must see that all the evidence which tends in any way to support such finding is contained in the case. The court of appeals can review the question raised by the excéption to the finding of fact without the statement that the case contains all the evidence.</p>

Motion to dismiss an appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict.

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict.</p>

<p>Appeal. Undertaking.—An undertaking on appeal in a foreclosure action against waste, and for the value of use and occupation, operates as a stay of proceedings, without a covenant to pay a deficiency, and the option is with the appellant to give either form of undertaking.</p>

<p>Appeal from an order of the general term of the supreme court, affirming an order denying a motion for a resettlement of the case.</p>

<p>Appeal. Findings.—Where there is evidence sufficient to sustain the findings of the court below, though some of it may partake of the character of conclusions of the witness, the court of appeals cannot decide upon its credibility.</p>

<p>Appeal from an order of the general term of the supreme court, affirming an order of the surrogate directing an accounting by the administratrix of a general guardian.</p>

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a decision of the court.</p>

<p>1. Taxes. Review.—In proceedings to review an assessment, adjudications made in prior years are binding and conclusive upon the parties thereto as to the present value of the property, unless there has been some subsequent increase or change affecting its assessable value, though some of the assessors have entered upon new terms of office.</p> <p>2. Same. Bar.—Where one pays taxes imposed under an assessment which is not void, but simply excessive and unequal, and gives notice of his proceedings to review and correct the same, such a payment under protest cannot be set up as a bar to the further prosecution of the proceedings.</p> <p>3. Same. Costs.—In proceedings under chap. 269 of Laws of 1880, to review an assessment, where it appears to the court that the assessors have acted “with gross negligence,” costs may be awarded against them.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict directed by the court.</p>

<p>Appeal. Verdict of jury.—The court of appeals has no jurisdiction to weigh the evidence, hut are concluded by the verdict of the jury, in case of .cofficting evidence.</p>

<p>Motion to remit return to the court below for amendment.</p>

<p>Evidence. Objection.—A general objection to evidence is good provided the evidence is incompetent and the objections could not have been obviated; but it is insufficient, where the form of the question, on a more specific objection, might have been so changed as to obviate the objection.</p>

<p>1. Deed. Adverse title.—The provisions of the Revised Statutes, 1 R. S. 739, Section 147, do not invalidate, in whole or in part, a grant, when the grantor is possessed, and delivers possession, of the greater part of the land conveyed, hut, hy reason of a disputed boundary line, a small portion of it is not in his actual possession at the delivery of his grant.</p> <p>2. Same. Action. Party.—In such case, an action to recover the part of the land in dispute may be maintained by the grantee in his own name; Section 1501 of the Code does not apply.</p> <p>3. Same. Damages.—A plaintiff who recovers in ejectment is entitled to damages for the withholding of the land up to the date of its recovery, and is not limited to the recovery of damages to the time of bringing his action.</p>

<p>1. Appeal. Objections not raised.—Where the plaintiff fails to establish on the trial the cause of action set forth in the complaint, but evidence establishing another cause of action is received, without objection having been made to the theory of liability advanced upon the trial, because not within the issues, it is too late to present the objection in the first instance on appeal, nor can a reversal be there claimed upon the ground that the recovery was for a cause of action not alleged in the complaint.</p> <p>2- Same. Directing a verdict.—Though it is the duty of the court to direct a verdict, where the proof of a fact is so preponderating that a verdict against it would be set aside as contrary to the evidence; yet, where the evidence admitted without objection, when taken as a whole, presents a question, though different from the issue raised by the pleadings, for the jury, the court must deny the motion to direct a verdict.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a decision of the court.</p>

<p>Trial. Offer of evidence.—A referee may, in his discretion, refuse to rule upon an offer of evidence, and has the right, at least when the opposite' party requires it, to hold that the witness shall be produced, and1 questions asked tending to establish the matter embraced in the offer.</p>

<p>1. Appeal. Reviewx of findings.—A finding made without any evidence . tending to sustain it is a ruling upon a question of law, and an exception taken thereto may be reviewed in the court of appeals. But where there is evidence tending to sustain the finding, it is a ruling upon a question of fact, and no exception can be taken thereto.</p> <p>2. Same.—An appeal can be taken to the general term upon questions of fact, where the trial was by the court or a referee, and the general term has power to review the facts; but the court of appeals cannot review the evidence and reverse the judgment upon the ground that, the finding of the referee is against the weight of evidence.</p> <p>3. Evidence.—On the issue whether the plaintiff was an employee of partner of defendant, evidence of the business arrangements between them, that he assisted in procuring the contract, and that the contract proved unprofitable, is competent.</p>

<p>1. Appeal. Heversal on questions of fact.—Where it appears from the order of the general term that the reversal of the judgment was not had upon questions of fact, the court of appeals must consider whether the trial court committed an error justifying such reversal.</p> <p>2. Same. Question of fact.—The question as to whether a contract for sale of machinery rested entirely in parol, or was reduced to writing, is, on conflicting evidence, one for the jury.</p>

<p>Appeal from an order of the general term of the supreme court, reversing order and judgment for costs, without prejudice to the application to special term for costs on appeal to general term, and to the court of appeals for costs of the appeal to the latter court.</p>

<p>1. Evidence. Indemnity.—Where the plaintiff gave its bond to the sheriff for the benefit of a large number of judgment creditors, each of whom severally gave to it indemnity bonds, there was no error, upon, the trial of an action upon the indemnity bond given by defendants, who were a portion of such creditors, to exclude proof of the other indemnity agreements, as their existence in no way affected the liability of the defendants under their agreement.</p> <p>2. Same. Parol.—Oral evidence of the understanding of the parties at the time defendants executed their indemnity agreement, is incompetent.</p> <p>3. Same. Pelease.—The fact that the plaintiff released some of the indemnifying creditors from the whole or part of their liability on their-agreements, does not furnish any defense to the defendants in an action, on their indemnity bond.</p>

<p>1. Evidence. Parol.—Where a building contract specifies that the work shall be done agreeably to drawings and specifications made and signed by the said parties and hereunto annexed, and there were no specifications signed by the parties, annexed to, or definitely identified by, the contract, oral evidence to show what specifications were actually agreed upon by the parties, is competent.</p> <p>2. Appeal. Issues of fact.—Defects and omissions in the performance of a contract, whether of much or little importance, are, upon conflicting evidence, issues of fact for the determination by the trial court, subject to the review of the general term, but not reviewable in the court of appeals.</p> <p>3. Same.—Where an issue of fact has been determined in the plaintiff’s favor, upon three trials, by a jury, referee and the court respectively, the general term very properly refuses to exercise its discretion and set aside a judgment as against the evidence.</p>

<p>Appeal. Order substituting defendants.—Where, pending the trial of an action, an order is granted vacating the proceedings had upon the trial, striking out of the summons and complaint the name of the defendant and inserting the name of a new defendant, who is brought into the action by service of the amended summons and complaint, the latter is not prejudiced by the order and may not appeal therefrom.</p>