Volume 26 — New York State Reporter

<p>New trial — Newly discovered evidence.</p> <p>A new trial will not be granted on the ground of newly discovered evidence where it is apparent that the proposed evidence will not materially affect the result.</p>

<p>Practice — Settlement of case.</p> <p>The certification of the trial judge on the facts of the case is conclusive, and his action in determining as to what had occurred cannot he reviewed.</p>

<p>Mechanic’s lien — Abandonment by contractor — Effect as to MATERIALMEN — LAWS 1885, CHAP. 342, § 1,</p> <p>Where an owner makes a contract for the completion of houses, he to advance a sum of money, and on the fulfillment of the contract to convey the premises to the contractor for a named consideration, and the contractor subsequently abandons the contract, a person who furnished stone to the contractor is entitled to a lien.</p>

Appeal by the John A. Boebling’s Sons Company from a special term order, denying the prayer of the petition of said company to set aside the sale made under the decree of foreclosure herein. The following is the opinion at special term denying the petition:

<p>Partnership — Executors not made partners by loan to survivor.</p> <p>By the partnership agreement the business, with a specified capital, was, on the death of either partner, to be continued for five years by the survivor, the estate of the deceased partner to share in profit and loss as if he were living. Held, that the death of the partner dissolved the original firm, and the estate was not liable for debts thereafter contracted, and the fact that the executors loaned money to the survivor did not make them liable as partners. o</p>

<p>Trustee — Removal of — Dishonesty or improvidence not necessary FOR.</p> <p>To justify the removal of a trustee, it is not necessary to find that he was dishonest, nor that he was improvident in the general sense of that term.</p>

Appeal by the defendant, W. Grill Wylie, from a judgment rendered upon the decision of the court, upon a trial before the court, without a jury, at a circuit court in the county of New York, and entered in the clerk’s office of that county on the 18th day of April, 1888.

<p>1. Partnership — Requisites of — Proprietary interest.</p> <p>Where A agrees to stock a store and hire a manager, and B, O and D to endorse A’s notes, do what they reasonably can to make the business a success, and to have an interest in the goods in stock to the extent of their endorsement, “ subject, however, to no liability hut such endorsement” and the net profits are to be divided-between them all in a stated proportion, but, if loss ensues, B, C and D to have goods to secure them, they have a proprietary interest, and are liable as partners.</p> <p>3. Same.</p> <p>The stipulation that B, 0 and D should not be liable beyond their endorsement limits their liability between them and A, hut not as to liability to a creditor of the concern.</p>

<p>Eminent domain — Street railroads — Laws 1884, chap., 252.</p> <p>Chap. 252, Laws of 1884, relating to street railroads, does not authorize the construction of such road through private property, nor the condemnation of land for the purpose of such construction.</p>

<p>1. Nuisance — Obstruction ot street.</p> <p>Occupants of premises on a street have a right to have the sidewalks clear of all obstructions except such as are reasonable and necessary under all circumstances.</p> <p>3. Same.</p> <p>Defendant allowed his horses and wagons to stand on the sidewalk during the greater part of the day, thus compelling all travelers to turn out in the street in order to pass. Held, that such obstruction was not reasonable and that plaintiff, who occupied premises on the same street, was entitled to maintain an action to abate it.</p>

Defendant had been arrested for non-payment of alimony directed to be paid by a judgment in an action for divorce, and served the full term of imprisonment prescribed-by Code Civ. Pro., § 111. The order appealed from directed his commitment for non-payment of other sums afterwards becoming due under such judgment.