Volume 35 — New York State Reporter

The judgment of the general term reversed that part of the special term judgment which declared certain assessments upon lands of the plaintiffs void, and enjoined the city of Buffalo from enforcing them, and affirmed that part of said judgment which restrained the said city from paying any money to the defendant McConnell upon a contract with him for macadamizing Delaware street in said city.

<p>Estoppel—Seal on bond.</p> <p>In an action on a penal bond in which it was recited that it was executed under seal, the obligor is estopped from denying that it was so executed when it appears by his own evidence that he knew the difference in the legal effect between sealed and unsealed instruments, that he read, sub scribed and placed it in the custody of the person interested in having it accepted, when it also appears that that person sealed and delivered it to the obligee, who received and acted on it in good faith.</p>

<p>Appeal from judgment of the supreme court, general term, third department, modifying and affirming judgment in favor of plaintiff.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer to the complaint.</p>

<p>1. Contract—Fraud.</p> <p>To avoid a contract for fraud, it must appear that the representations were false, and known to be so by_ the party making them; that they were the cause of the other party entering into the contract, and that the latter was not guilty of carelessness, but used due diligence in determining whether the representations were false.</p> <p>3. Same.</p> <p>In an action upon a note, the defense was that it was procured from defendant in payment for a scholarship in plaintiffs college by false representations that defendant’s son had consented to go to school. The son was living at home at the time, but defendant did not inquire of him if he had made such promise, although he expressed doubts on the subject to plaintiffs agent. Meld, that under these circumstances he could not be permitted to say he was deceived, and obtain relief from his obligation on that ground.</p>

ppeal from judgment in favor of plaintiff. This actión was brought to recover the value of two heifers which were killed on the defendant’s railroad in the city of Buffalo by being struck by an engine. There was judgment for the plaintiff. It was alleged and proved that the company failed to erect and maintain fences on the sides of its railroad.

<p>Appeal from judgment in favor of plaintiffs.</p>

<p>Partition—Parties.</p> <p>The complaint in an action of partition alleged that S., an owner of a, share in the property, conveyed his interest “subject to a claim of one J., to be adjusted and paid out of the said interest conveyed,” and that such interest afterward passed by descent to certain of the defendants; that defendant G. claims an undivided interest in the land by virtue of a judgment against S., recovered subsequent to such conveyance. On demurrer-interposed by G-., Held, that whatever the actual character of J.’s claim may be it is nothing more than a personal right to receive a sum of money which the owner of the land has a right, and .is perhaps under an obligation to pay, and this does not create in J. the sort of interest which makes him a necessary party to such an action.</p>

<p>1. Negligence—Parties.</p> <p>An action under the statute of a foreign state can only be maintained in this state by such parties as are designated by the statute giving the right of action. '</p> <p>2. Same—Action for death caused in foreign state.</p> <p>The husband of plaintiff was a brakeman in defendant’s employ, and was killed while in the performance of his duties in the state of Pennsylvania. The statute of that state is similar to that of this state, hut pro- ’ vides that the widow may maintain the action and the damages shall go to the widow and children in the proportion that they would take other personal property in case of intestacy. Held, that the action was properly brought in this state in the name of the widow.</p> <p>3. Same—Pleading.</p> <p>The complaint alleged that the statute of Pennsylvania conferred upon the widow the right to maintain the action; that by the said statute the persons entitled to the damages are the widow and children, and that the action is brought by plaintiff in behalf of herself and children. Held, that the allegations were not repugnant. (Per Beckwith, Oh. J.)</p>

<p>Appeal from a judgment of the Niagara county court, reversing a judgment of a justice’s court.</p>

<p>1. Basements—Right oe access.</p> <p>An easement or right of access to property includes the opportunity for a man’s customers to come to his place of business without unreasonable hindrance or interruption.</p> <p>2. Municipal Corporations—Streets—Change op grade.</p> <p>Erecting an embankment in a street does not itself alter the legal grade.</p> <p>3. Railroads—Appropriation oe street—Easement.</p> <p>The embankment complained of in this case is the same as that in the Jeaume case, but it is five feet high in front of plaintiff's premises. The space between the retaining wall and the curb is only nine feet, not sufficient to allow two teams to pass, or the convenient Standing of wagons, or loading and unloading of goods. Held, that the embankment was an appropriation of the street to defendant’s use, and not a change of grade; that plaintiffs were thereby deprived of their easement of access, and entitled to recover therefor.</p> <p>(Hatch, J., dissents.)</p>

<p>Negligence—Crossing in front of street cars.</p> <p>A careless boy, with his eyes open to the danger incurred, attempted to cross a track in front of a moving street car and, erring in judgment as to the chances of doing so safely, was knocked under the car by the dashboard and injured. Held, that the railroad company was not liable.</p>

Appeal by Louis Y. Durand, as administrator, from a decree of the surrogate of the county of New York, made on the settlement of his accounts.

Appeal by defendants from judgment setting aside a bill of sale and general assignment made by defendant, Louis P. Beck, to the otlier defendants as fraudulent and void. The following is the opinion of the special term: Adams, J.—The above actions were tried together, and, as they are dependent upon the same facts as well as the same principles of law, they may be disposed of in like manner.