Volume 4 — New York State Reporter

<p>Appeal from an order denying motion to vacate an order of arrest.</p>

<p>Appeal from a judgment on the dismissal of the plaintiff’s complaint at the circuit.</p>

<p>1. Partnership—Power of partners—Fraud.</p> <p>Is is not necessarily a fraud for one partner, without the knowledge of the other, to make and deliver notes of the firm to relatives, if it was done in the business of the firm, even though it may have been thereby intended to appropriate the property of the firm to the payment of these demands to the exclusion of other creditors.</p> <p>2. Same—Power to bind other partners.</p> <p>A partner may create obligations binding on the firm and under which its property may be taken and sold, without the assent of his co-partners.</p> <p>3. Same—Omission to inform partner of service of summons has. no EFFECT ON JUDGMENT.</p> <p>The designed omission of one partner to inform the others of the service of a summons on him in regard to a firm matter in and of itself has no such effect on the judgment or execution as to prevent the appropriation of the firm or joint property to its payment.</p> <p>4. Evidence—Latitude allowed in insolvent assignment matters.</p> <p>In insolvent assignment matters where a fraudulent intent in the disposition of property is alleged to have actuated the parties, great latitude in the investigation and in the admission of evidence is allowed, as an unlawful intent can ordinarily be proven by circumstances, and however slight they may be, if they legally tend to prove the case, they should be received.</p>

<p>Appeals by the plaintiff and by John 0. Atterbuiy, defendant, from a judgment recovered on the report of a referee.</p>

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

<p>Appeal from a judgment recovered on trial at the special term.</p>

This is an appeal by the defendants from a judgment against them for $13,470.44, November 16, 1885, in New York county. The trial was had at the New York circuit, November 14, 1885, before Mr. Justice Barrett and a jury, and a verdict had by the plaintiff for $13,319.01, under the direction of the court.

<p>Appeal from a judgment entered upon the decision at special term dismissing the plaintiff’s complaint upon the merits upon the trial of the issues.</p>

<p>1. Fraud—Obtaining goods under false pretences—What does not PROVE INTENTION TO DEFRAUD.</p> <p>Where the complaint in an action charged that the defendants acted together in a conspiracy to defraud the plaintiff, and that they did so defraud him out of the value of the goods, which he was induced to sell to W (one of the defendants), on credit, and the evidence disclosed that W. made no representations to the plaintiff concerning his. financial condition; except that a long time prior to the sale of the goods to him by the plaintiff, and more than a year before his failure, he stated he was doing a prosperous business. Held, that W. could not be held for fraud in procuring the sale, of the goods to him and that a non-suit was proper.</p> <p>3. Same.</p> <p>Intent to defraud may not be imputed to a purchaser of property on credit, merely from the facts that he was, to his knowledge, insolvent at the time of the purchase, and that he omitted to disclose such condition to his vendor. These must he accompanied by other facts disclosing an intent to acquire the property without paying for it. A party seeking to establish a cause of action or a right to a remedy against another based upon alleged fraud, must show affirmatively facts and circumstances necessarily tending to establish a probability of guilt. Place v. Minster, 65 N. Y., 89, distinguished.</p> <p>3. Same—Conspiracy—Proof of.</p> <p>The fact that certain of the creditors of W. after he became embarrassed allowed him to increase his indebtedness to them and that they advanced considerable sums of money to him does not show a conspiracy on their part to defraud creditors generally.</p>

<p>1. New tbial—Ground fob—Refebee cannot compel pasty to call a WITNESS AS HIS OWN.</p> <p>Where the referee required the plaintiff to call as a witness on his own behalf one who the plaintiff claimed had become hostile to him and whom he did not wish to accredit by placing him on the stand, Held, error, and ground for a new trial.</p> <p>2. Lis pendens—Poweb of court to require amendment.</p> <p>Where the plaintiff in an action to establish the relation of equitable mortgagee against the defendant and in favor of himself filed a Us pendens against all the real estate of the defendant, and it is clear that plaintiff could have no lien on certain parcels of property, I-Ield, that the court in granting a new trial has power to require plaintiff to amend the lis pendens by striking out of it all claim of lien on those parcels of property.</p>

<p>Case submitted upon facts agreed upon between the parties.</p>

supplementary proceedings, $26,000 of United States government bonds in his hands which are claimed by the defendant to belong to the plaintiffs.

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

<p>Executors and administrators—Parties—Code Civil Pro., § 1814.</p> <p>To bind the estate of a deceased party, or to authorize any decree for an account against the same, it is not sufficient that the person, who is the representative thereof, is a party to the suit. Such person must be made a party distinctly in his representative character. Fisher v. Bubbell, 65 Barb., 74, followed.</p>

The demurrer to the amended complaint is based, first, on the ground that there is a defect of parties defendant, in that it appears upon the face of the complaint that there are nine directors of the defendant company, three of whom, namely, Webber, Myers and Doty are not joined as defendants; that there are three inspectors of election, of whom only two are joined as defendants, and that certain promissory notes made by the defendant, Rudolph Aronson, which have been…

<p>Appeal from a judgment recovered on trial at the special term.</p>

<p>1. Trustee op railroad mortgage—Duty of as to bondholders— When liable to one injured by his neglect of duty.</p> <p>Where the trustee under a railway mortgage given to secure the payment of bonds, fails to discharge the duties assumed by him, and the enforcement of the security is voluntarily handed over by him to the control and management of interested parties, although they may own the greater part of the bonds secured by the mortgage: Held, that the trustee becomes liable to the parties sustaining loss through the abdication of his duties and authority. Affirming decision in this case on previous appeal, reported 24 Hun, 297.</p> <p>2. Same—Damage must be proved.</p> <p>The plaintiff, as owner of the bonds secured by the mortgage, must establish by evidence the amount and extent of the loss approximately, and also the fact that he has actually suffered loss by the act of the trustee.</p>

<p>Practice—Pleading—Code Crv. Pro , §§ 500, 514.</p> <p>The object of this action was to obtain such a lease as would entitle the plaintiffs to a third renewal for a period of fourteen years The only answer served was the general answer for an infant defendant, submitting-in the usual form his rights to the decision and protection of the court The plaintiffs having wholly failed, Held, that the entire subject of the action was defeated, and that in order to have enabled the defendants to recover in this action the rents which had accrued during the litigation, the demand for them should have been set forth in an answer by way of counter-claim. That not having been done, there was no way to collect the rent except by a new action.</p>

<p>Appeal from a judgment enteréd upon the decision of the court at special term.</p>

<p>1. Attorney and client—Attorney’s services—Evidence.</p> <p>In an action for the value of attorney’s services, Held, that the court knows nothing of the charges that prevail at the bar, except as established by the evidence, and even if the court did entertain the impression that the charges in a particular case were unduly large, it would be unlawful for the court to interpose its personal opinions against the evidence of competent persons establishing the value of the services.</p> <p>3. New trial—Rule as to admission of improper evidence.</p> <p>Although the rule is that the admission of improper evidence must result in a reversal of the judgment appealed from, if it may have affected the verdict, although the court after its admission directs the jury to disregard it, yet when there was really no controversy as to the point, the defendant apparently relying upon the weakness of the evidence on the part of the plaintiff. He<d, that it was sufficient ground for a new trial on motion of defendant.</p>

This is an appeal from a judgment of the county court of Albany county reversing a judgment or final order made by a justice of the peace of the town of Coeymans to remove a tenant, Charles M. Barlow, from premises in the town of Coeymans.

<p>Appeal from an order made at the Chemung special term denying a motion to set aside the taxation of defendants’ costs herein. Judge Martin delivered the following opinion on deciding the motion from which this appeal is taken.</p>

<p>Appeal from an order of the supreme court, general term, second department, affirming an order of the special term, denying appellant’s motion to set aside a former order of that court awarding an infant to the custody of relators on the ground that the court had no jurisdiction to make such order.</p>

<p>Appeal—Reargtjment—death of party at time of appeal is not GROUND FOR.</p> <p>On a motion for reargument of an appeal. Held, that an affidavit showing that when the appeal was argued and decided, plaintiff was dead, furnished no ground for reargument.</p>

<p>1. Reargument—Upon a different state of facts from that presented TO GENERAL TERM CANNOT BE HAD BEFORE COURT OF APPEALS.</p> <p>Upon a motion made for a reargument before the court of appeals: Held, that the court could not rehear a matter upon a different state of facts from that upon which the general term acted, since that would be an exercise of original jurisdiction on the new state of facts presented and not a review of the actual determination of the court below.</p> <p>3. Same—When mat be had before general term.</p> <p>Held, that if a new state of facts giving rise to new questions and obviating the legal objections which existed to the application originally made by the petitioner were presented, the order made by the court" of ap peals affirming an order of the general term denying the application of the petitioner would be no obstacle to a rehearing of the matter at the general term on the new state of facts, or to a new application based upon the new facts.</p> <p>3. Conditions in statute—When compliance with must be strict.</p> <p>Where it is sought to take the property of an individual under powers granted by an act of the legislature to a corporation to be formed in a particular manner therein directed, the constitutional protection of the rights of private property requires that the powers granted by the legislature be strictly pursued and all the prescribed conditions be performed.</p>

<p>Appeal by the administrators from an order of the Wayne county surrogate’s court, directing them to make and render an intermediate account of their proceedings as such.</p>

Appear from a judgment of the Monroe special term, entered upon the report of a referee and from an order denying motion to vacate the referee’s report, etc.

<p>Appeal from judgment entered on report of referee. The action was brought against the defendant individually, and as administratrix, etc., of Nelson Gillett, deceased, upon a promissory note of date March 30, 1883, for $175, made by her intestate and herself, and payable to the plaintiff at six months, with interest.</p> <p>The defendant, as such administratrix, did not appear in the action, but individually did, and answered: At the time the note was made she was the wife of Nelson Gillett, who died in June following. The note was given for a loan of money, made by Nelson Gillett at the time of its date. When he applied for the loan he represented to the plaintiff that his wife wanted to borrow the money to use in payment on a mortgage upon her farm, and that she would sign the note.</p> <p>The money was advanced to the husband, who signed the note at its date, and the plaintiff, on the 30th day of May following, presented the note to the defendant, and she then signed it.</p> <p>The referee found that the note was not made by the defendant on account of or for the benefit of her estate, and refused to find that the loan for which it was given was made by her authority, and directed judgment of dismissal of the complaint on the merits.</p>

<p>Appeal by the defendant from judgment entered on report of referee.</p> <p>The action is to recover for personal injuries alleged to have been suffered by the plaintiff from an attack made upon him by the defendant’s bull.</p> <p>The referee directed judgment for the plaintiff.</p>

<p>1. Will—Construction—Power to sell does not include power to lease.</p> <p>The residuary clause < f a certain will devised and bequeathed all the rest and residue of his estate, both real and personal, not before devised or bequeathed, unto his heirs at law, to he equally divided between them, and then provided and directed that in case Ms heirs could not agree on a division of the property that Ms executors, within a reasonable time after his decease, should sell and dispose of the same for the best price they could obtain, and divide the proceeds among his heirs at law. Held, that the executors were only given power to sell, and that no title vested in them. That they had no power to lease. That where the will provided that the power should be exercised by a majority of the executors, and two being alive, one had no power to act alone.</p> <p>2. Navigable streams—Riparian rights op owners oe land adjoining FRESH WATER LAKES—PUBLIC EASEMENT FOR PURPOSE OF NAVIGATION.</p> <p>Riparian owners of lands adjoining fresh water non-navigable and navigable streams and small lakes within the state take title to the land underneath the water abutting upon their premises. The public has an easement in such waters for the purposes of travel as upon a public highway, which easement is inalienable and gives the state the right to use, regulate and control the waters for the purposes of navigation.</p> <p>3. Same—Wharves and piers—Public has no right to use private wharves and piers.</p> <p>The public has no right to use wharves rr piers erected by the owners of land adjacent to navigable waters, although such whaives extend beyond low water mark and were erected without the consent of the state. If the state permit such structures to remain, no private individual has any right of entry upon them without the consent of the owners.</p> <p>4. Same—Ejectment a proper remedy.</p> <p>Where a pier was constructed upon piles driven into the earth and title thereto vested in the same person who was the owner and had the right to use the land: Heed, that ejectment may be maintained to recover the possession of it.</p>

<p>1. Contract—Burden on plaintiff to prove performance.</p> <p>Plaintiff contracted to furnish, deliver and put in good order in defendant’s salt works a complete set of his raking apparatus, constructed substantially after the plan of a model referred to that should remove the salt from defendant’s grainers and carry it to the storage bins as fast as made, in a fair, workmanlike manner, and guaranteed the working of the apparatus in as good order as any other kind of rake. Defendant agreed lo pay for the rakes as soon as they were finished and had been in successful operation, according to the specifications. Plaintiff put the machine in defendant’s works, and it was op'erated for some months. Plaintiff alleges performance, which defendant denies. Held, that the burden was with the plaintiff upon the issues to show performance of his contract.</p> <p>S. Same—Construction of—Evidence—Competency of.</p> <p>The successful operation of the machine was the raking the salt from the grainers, and after suitable drainage conveying it to the storage bins. Defendant gave evidence of the condition of the salt raked out and taken to the bin by plaintiff’s apparatus, to which objection and exception were taken by plaintiff. Held, that the contract was something more than a mere contract frr service on the part of the plaintiff; he undertook to supply by the apparatus of which he was the inventor the requirement for the work it was designed to perform in the business of defendant’s works. That evidence of the impaired condition of salt was competent, so far as it was attributable to the defective operation of defendant’s machii.e.</p> <p>8. Evidence—Competency of.</p> <p>The chains by which the rakes were operated were in the brine of the grainers, and some evidence was given of the effect of the brine upon them, and tended to prove that it produced corrosion. Held, that while the position of the chains must have been seen from the plans submitted, yet the evidence could not have been said to be incompetent, for it might have been contemplated that the metal would be so prepared as to be proof against the brine.</p> <p>4. Verdict rendered on conflicting evidence—When not disturbed.</p> <p>There being a conflict of evidence upon the question of the operation of the machine, its manner of doing its work, and the opportunity given to plaintiff to repair and correct defects therein. Held, that these were questions of fact for the jury, and their finding not being against the weight of evid.nce could not be interfered with.</p>

<p>1. Pleading—Justice’s Coubt—Complaint—Mutual mistake.</p> <p>The complaint in an action in a justice’s court alleged in substance that the plaintiffs assignor purchased a bond and mortgage against one H., on which it was supposed and alleged there was due the sum of $888. B7, which sum the assignor paid the defendant therefor, whereas the amount then due on the bond and mortgage was in fact fifty-eight dollars, _ or thereabouts, less than so supposed and paid. Held, that the complaint stated enough to “enable a person of common understanding to know” that an overpayment by mutual mistake was intended to be alleged; and the proof sustaining that allegation entitles plaintiff to recover.</p> <p>2. Assignment—Claim fob money paid by mistake assignable.</p> <p>A claim for money overpaid by mutual mistake of facts is assignable.</p>

<p>Appeal from a judgment entered on a decision of the Cattaraugus special term dismissing the complaint.</p>

<p>The plaintiff recovered a judgment in the municipal court of the city of Rochester against the defendant and a transcript of the same was tiled in the Monroe county clerk’s office and an execution issued thereon and returned unsatisfied. Thereafter an order in proceedings supplementary to execution was granted by the special county judge requiring the defendant to appear before a referee and submit to an examination. The defendant did not appear pursuant to the order, and thereupon the same officer granted an order for her to show cause before him at his chambers why she should not be punished as for a contempt of court in neglecting to appear before the referee as directed by the previous order. Upon the return day the defendant appeared and read affidavits seeking to excuse her failure to appear and submit to examination before the referee. The motion to punish the defendant was denied without costs. From that order the plaintiff appeals.</p>

<p>Appeal from a judgment dismissing the complaint entered upon the decision of .the court, on a trial without a jury at the Monroe circuit.</p>

<p>Appeal from judgment entered on decision of Monroe special term, dismissing complaint and from order denying motion for new trial.</p>

Action to recover damages for injury sustained by plaintiff while in defendant’s employ as a brakeman. Tried at Steuben circuit, November, 1885. Plaintiff non-suited and exceptions ordered heard at general term in the first instance. On the evening of January 13, 1883, the defendant started a train from Corning to Lyons, consisting of a locomotive and tender, a combination baggage and smoking car and a passenger coach.

<p>1. Evidence—Secondary—Non-production op written instrument— When accounted for—Objection to testimony.</p> <p>In an action brought to recover a balance of account alleged to be due to plaintiff, a corporation, for goods sold and delivered to defendant by plaintiff’s assignors, G & Co., the dispute was as to two items, one dated August 16, 1879, and the other August 27. Plaintiff claims that on or about the date mentioned defendant ordered merchandise of G & Co., and that the goods so ordered were sent to and received by him; and defendant denies ordering or receiving the goods, or any portion thereof, by himself or any one authorized thereto by him. By uncontradicted evidence it appeared that on August 16, 1879, G & Co. received an order by mail, and on August 27 an order by telegraph, purporting to be signed by defendant, for goods which they at those dates shipped to defendant. The written order and telegram were not produced at the trial, but evidence was given tending to show their destruction or loss, which justified the admission of secondary evidence. B, a witness called by plaintiff, testified that he personally received the order of August 16; he being at that time one of the firm of G & Co.; that it was a letter in the handwriting of defendant, the same writing he had always sent his prior orders in, and was signed by him; that the witness knew his handwriting, and that it was his. An objection to paroi proof of the contents of the letter was taken at an earlier stage of the trial, and the court had ruled that it would be stricken out if proof of the loss of the letter and order was not given, but no such objection was made after the evidence above referred to tending to show the destruction or loss of the order and telegram was introduced, held, that the testimony of B might, therefore, be regarded as having been received without objection; also that an objection that the non-production of the letter and telegram had not been accounted for would not have been well founded.</p> <p>2. Questions of fact—Decision upon by triad judge—When not disturbed.</p> <p>In respect to the item of August 16, a witness called by plaintiff testified that he was general agent of the L. S. andM. S. R. R. Co. for the delivery of freight at B, and produced a delivery book of freight of that company containing original entries of freight delivered for the month of August, 1879. Among these was a receipt of a parcel corresponding to the item charged, which was shipped to J. R. The witness testified that it was delivered by himself on August 17 to J. J. W. on the order of J. R, and the receipt was signed by W on the day of its date. He also testified that it was a strict rule of the company not to deliver freight to any person other than the consignee except on written order from him, and that the rule was not in this instance departed from. W was not produced as a witness.</p> <p>In regard to the item of August 27 witness testified that he sent it by express as ordered, and produced what he testified was a delivery receipt book of the B office of the A E Co. for 1879, containing a receipt dated August 29, 1879, which witness testified was for the same package that he sent to defendant to fill his order as telegraphed, and the signature to which he stated was in defendant’s handwriting. The receipt was put in evidence. Held, that the evidence established a prima facie case for the plaintiff, and that the testimony on the part of the defendant not so preponderating_ as to justify the conclusion that the decision of the trial judge upon questions of fact was against the weight of evidence, it must be regarded as conclusive.</p>

<p>Contracts—Unlawful combination—Bill of particulars—When ORDER FOR SHOULD NOT BE GRANTED.</p> <p>The plaintiff, with others, entered into an agreement with defendants, as brokers, to form a pool for the purchase and sale of lard; certain of the parties binding themselves to tie up and withdraw from the market a large quantity of lard, and thus so control that product as to enable them to advance its price. In this action to recover alleged profits: Held, that such combination or scheme is an unlawful conspiracy, and therefore an order for a bill of particulars should not be granted.</p>

<p>Appeals by the plaintiff, and by the defendants above named, from parts of judgment entered on report of referee.</p>

<p>Appeal from order of the special term denying defendants motion to change place of trial from New York to Onondaga county.</p>

<p>Trusts and trustee—When judgment creditor can reach surplus INCOME OE CESTUI QUE TRUST—WlIAT MUST BE SHOWN.</p> <p>An action was brought for the purpose of reaching certain alleged accumulations of income of the judgment debtor, constituting a surplus over a d above the amount which should be allowed to the beneficiary, Wilmer S. Wood, for his'necessary expenditures, he being a beneficiary under a clause in his father’s will, which provided for the appropriation of a part of the income of his estate, without the power of anticipation of any surplus income until the son should attain full age, when the trustees were authorized to advance such accumulations or to keep them invested or give them to him from time to time as they thought best. Held, that in determining what is a proper amount to be allowed said son for his expenditures, the manner in which he has been brought up, the habits acquired by him and his ability to take care of his property must be considered. That it was the duty of the plaintiff to show in order to succeed that there was a surplus of income.</p>

<p>Appeal by Andrew J. Moore, as receiver from two several orders dated respectively August 4 and 16, 1886, the former directing said receiver to pay to the defendant the sum of forty-nine dollars, rents collected by him as receiver, and the latter denying a stay upon such appeal.</p>

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

<p>Attachment—Assignment fob benefit of cbeditobs—What sufficient EVIDENCE OF FBAUDULENT INTENT TO SUSTAIN ATTACHMENT.</p> <p>On an application to discharge an attachment issued in favor of the plaintiff against goods in the hands of an assignor for the benefit of creditors, the affidavits on which the attachment was issued and those used by plaintiff on the application showed that large amounts of goods were purchased shortly before the failure and not paid for, and that judgments were confessed to the preferred creditors and preferences made in favor of of the assignor’s wife and other near relatives exceeding in amount the value of the assets transferred hy assignment. Held, that there was sufcient to indicate fraudulent intent in making the assignment, and that the refusal to vacate and set aside the attachment was proper.</p>

<p>Practice—Examination of parties before trial—Sufficiency of affidavit.</p> <p>In an action brought to recover $7,500 upon an instrument held hy the plaintiff, and upon wnich he alleges the defendants to have bee. me liable to him, but which liability they deny, an order was made for the examination before trial of a party defendant as a witness for the plaintiff. The affidavit of the plaintiff upon which the order was made stated that without an examination of the defendants to be used upon ihe trial, he had no means of ascertaining the language of an instrument, signed by himself and another person and given to the defendants, and has no knowledge of the state of the accounts, etc., and “has no means of obtaining such knowledge except through an examination of defe. dont before triar ” & Jrield, that the order was properly granted, that the fact that the evidence obtained may have a leuden y to defeat the defense of the defendants, is not a reason for denying plaintiff the right to take the testimony.</p>

<p>1. Practice—Discovery and inspection of defendants’ books, etc.— When order for should not be. granted.</p> <p>Where the pleadings taken in connection with declarations made in open court prima facie proved the plaintiff’s claim by admitting the making of the alleged agreement, but set up that it was obtained by fear, duress, coercion and fraud, Held, that it was not necessary to establish plain iff’s case to examine defendants’ b ;oks, etc. That if the books can be obtained by subpoena, duces tecum, on the trial, an order for their-inspection will only be granted in extreme cases.</p> <p>3. Same.</p> <p>Held, That the books, etc., to be inspected must relate to the position taken by the applicant and not that of the opposite party. That, a discovery will not be granted unless the court is satisfied that the discovery is pertinent and material to the claim or defense of the party seeking the remedy.</p>

<p>Appeal from a judgment recovered on the verdict of a jury and from an order directing the allowance of seventy-five dollars for referee’s fees as a part of the disbursements in the action.</p>

<p>1. Guardian—Bond of—Omission of date is unimportant—Date is determined BY DELIVERY AND FILING.</p> <p>In an a' tian upon a bond given by a guardian of an infant upon his appointment by the surrogate’s court. I-leld, the omission of the date was of no importance, that the time of delivery determined the date, and the delivery and filing of such a bond in the surrogate’s court controlled the question of date where it is not inserted, and also where it is, when the question of date becomes important.</p> <p>2. Same—Penalty of bond—May be filled in by clerk—Must be fixed BY SURROGATE.</p> <p>The penalty of the bond was filled in by a clerk of the surrogate’s court at double the valuation of the infant’s property as stated in the petition. Held, that this did not establish an omission by the smrogate to “fix the amount of the bond” as required by statute.</p> <p>3. Same—Action on—By whom brought.</p> <p>Such an action may properly be brought in the name or the infant by her guardian, but some authorities in this state allow it to be brought by the guardian as suc'i. An objection as to this may be raised by demurrer, but ought not to be fatal at the end of the trial.</p> <p>4. Same—When accounting of guardian necessary and when not.</p> <p>Before an action can be brought against sureties on the bond the court will require an accounting where it will be necessary or availing to establish the extent of tlieir liability, if practicable, hut "where it is of no use or advantage to the sureties it will not be required.</p> <p>6. Same—Conditions in bond—What deemed independent.</p> <p>Held, that an accounting was one of the conditions of the bond for a breach of which pie sureties were liable, but that the primary condition being that the guardian “will in all things faithfully discharge the trust re posed in him,” the conditions of the bond were independent and divisible"</p>

<p>1. Contempt—Costs—Restitution oe when ordered—Code. Crv. Pbo., § 1323.</p> <p>Where an order is modified upon appeal the appellate court or general term of the same court as the case may be, may make or compel a restitution of property or of a right lost by means of the erroneous order, Code Civ. Pro., § 1323, and the restitution of costs erroneously awarded may be so ordered.</p> <p>2. Same—Disobedience to the obdeb—Not punishable as contempt Code Civ. Pbo., § 16.</p> <p>An attorney so ord red to make restitution of costs is not punishable for contempt because of disobedience to the order, Code Civ. Pro., § 16.</p> <p>3. Same—Remedy fob—Execution against pebsonal property—Code Crv. Pbo., § 779.</p> <p>The remedy in such a case is provided by Code Civ. Pro., § 779, which declares that where costs of a motion, or any other sum of money, directed by an ord r to be paid, are not paid within the time fixed for that purpose by the order, or if no time is so fixed, within ten days after the service of a copy of the order, an execution against the personal property only of the person íequired to pay over may be issued by any party or person to whom the costs or sum of money is made payable.</p>

<p>1. Pleadings—Account stated set forth in complaint—When evidence MAY BE INTRODUCED TO ESTABLISH ANOTHER LIABILITY.</p> <p>The complaint alleged the employment of plaintiffs as brokers by defendant to make purchases and sales of stock on his account and at his risk, the advancement of money for that purpose and consequent purchases, and the earning of commissions, which upon a closing of an account rendered showed a balance due for which plaintiffs were entitled to credit; it also alleged an account stated between the plaintiffs and defendant, which was received and accepted without opposition. All the allegations of the complaint were sustained by proof. Upon plaintiffs resting their case defendant moved for a nonsuit, on the assumption that plaintiff's must recover secundum o,l (gata, and not having established an account stated, the complaint being on an account stated, must fall. Held, that the complaint was broad enough to warrant the reception of evidence, independent of an account stated, and that evidence sufficient, in the absence of contradiction, to establish a liability on the part of defendant having been brought forward and remaining uncontrovertcd, plaintiffs were entitled to a recovery..</p> <p>2. Liability—What not sufficient to terminate.</p> <p>Defendant’s statement that after the margins placed by him in plaintiff’s hands were exhausted, he did not consider himself liable for any further losses, does not relieve him of liability, no circumstances being proved sufficient to put an end to the liability at that time.</p>

<p>Stipulation by attobnies—Order in conformity to should not be GRANTED AGAINST OBJECTION OF CLIENTS.</p> <p>When an act is attempted to be performed by stipulation in the progress of an action, an order in conformity to it should not be granted against the objection of clients, except in rare instances, even though for their benefit, moie especially not where it draws on a fund in which they were interested.</p>

<p>Mabried women—Power to form copartnership with her husband.</p> <p>Whether under the married woman act a husband and wife may form a copartnership and carry on business as copartners, quaere.</p>

<p>Appeal from an order of the special term directing judgment for the respondents on a certiorari.</p>

<p>1. Pleadings—Allegations in the complaint not controverted by ANSWER ARE TAKEN AS ADMITTED FOR THE PURPOSES OP THE ACTION Code Civ. Pro., § 522.</p> <p>This action was brought to set aside an assignment for the benefit of creditors with preferences. The complaint alleged that the defendants B, J and B were copartners, doing business under a firm name; that plaintiff recovered judgment against the firm and issued execution thereon, which was returned unsatisfied;' that after contracting the debt on which the judgment was founded, said defendants assigned all their property to H. P. B in trust for the payment of their debts; it was further alleged that said assignment was made by the defendants B, J and B with the intent to delay, hinder and defraud their creditors. This last allegation was put in issue so far as it avers fraudulent intent by the a-swers, but the several allegations touching the making or execution of the assignment were not denied. Held, that under Code Civ. Pro., § 522, the allegations as to the making of the assignment by the several members of the firm being material and not controverted by the answer, must, for the purpose of the action, be taken as true, and that the court having found upon evidence offered that the assignment was not executed with the absent orratification of all the copartners, and the case having been disposed of upon that ground, judgment should be reversed.</p> <p>2. Assignment op firm property—General assignment for benefit OF CREDITORS.</p> <p>A sale or assignment of firm property may ordinarily be executed in the firm name by one of the partners, but when it is an assignment for the benefit of creditors it mustappearthattheseveral copartners assent to or ratify the execution of the instrument.</p>

<p>1. Contract—Consideration—What sufficient for a contract to PAT COMMISSIONS.</p> <p>One W, entered into an agreement with H, whereby W, agreed to pay to H, $2.50 on each and every 5,000 bushels of g ain purchased and sold, or sold and purchased in the course of W’s business to any customer or customers who should be introduced to him. by II, or by either of the persons so introduced. H, introduced ■ two customers. Held, that the act of introducing these customers to W, was a legal consideration for the agreement so as to entitle II, to the commissions upon the purchase and sale of grain by said customers. But that there was no consideration for the agreement to give commissions on transactions of persons introduc'd to W, by either of the dealers introduced to him by H, and as to them the agreement was nudum pactum.</p> <p>8. Same—When a beceipt mat be explained.</p> <p>Where a receipt in full was given upon the payment of a less amount than was due, through a misapprehension as to the fact. Held, that as there was no consideration for the statement that the amount paid was received in full that the receipt itself was no defense to an action for the amount then due in excess of the amount paid.</p>

<p>Motion for a reargument of the appeal in this action.</p>

<p>Appeal from an order, of reference and motion to dismiss appeal on the ground that it was not taken in time.</p>

<p>1. Promissory notes—Defense to—Composition deed.</p> <p>In an action brought upon notes given in composition of the debts of a firm, the defense was that they were given in violation of the terms of the composition deed, one clause of which was as follows : “We, who have hereunto subscribed our names and affixed our seals creditors of D. M. K. and B. K., composing the firm of K. & K.” Held, That this limited the • effect of the instrument to those persons who should become parties to it, and did not render it indispensible to its validity that all the creditors should execute the paper.</p> <p>' 3. Composition deed—What will not invalidate.</p> <p>The terms of the agreement provide that the debts should be compromised for fifty cents on the dollar. Held, that it was not invalidated by the fact that one of the creditors received less than that proportion.</p> <p>3. Same—Act of one of the creditors.</p> <p>Held, That the agreement was not invalidated by the fact that one of the creditors in receiving notes to the amount due it under the copiposition deed did not release its right to hold the indorsers liable for the residue.</p> <p>4 Same—Admissibility in evidence.</p> <p>After proof had been given that the notes in suit were for part of the excess over the amount mentioned in the agreement that instrument was offered in evidence. Held, that an exception to its exclusion was well taken.</p> <p>5. Same—Estoppel.</p> <p>The president of the'plaintiff subscribed the composition deed at its office with the apparent approval of one of its directors and through the agreement then made, expressed in part by the composition, the bank received the notes and endeavored to collect them. Held, That by this it sanctioned the act of the officers in obtaining the notes, and an objection to the authority of the president to sign the composition was untenable.</p>

<p>1. Attorneys—Not to buy clam—Code Crv. Pro. § 73.</p> <p>There is nothing in Code Civ. Pro., § 73, to prevent an attorney or counsellor from buying anything named in the act for any other intent, use, or purpose than that of bringing an action thereon. The purchase of a judgment for the purpose of collecting it as such by execution, or any other mode that simply enforces the judgment or its lien is not within the letter of the statute or its mischief.</p> <p>2. Same—Evidence—When admission by attorney not competent as EVIDENCE.</p> <p>An attorney is not competent to make admissions in conversation with third persons which will be evidence against a client as to the facts of his case.</p>

<p>Evidence—Parol evidence can be given to vary a contract to which THE PARTY IS A STRANGER.</p> <p>Where the plaintifls- in an. action for the value of certain work, labor and material performed and used upon the property of one K., commenced to do the -work, etc., under a written contract made between them and one B., who had said work in charge for K. But B. dyir:g when the work was only one-third done, K. thereupon took charge of the work and directed the plaintiffs to proceed with its performance, which they after-wards did. Held, that K. was entitled to prove an oral agreement which varied the written contract. That the rule excluding paroi evidence to add to, enlarge or restrict a written instrument does not apply to a person who is a stranger to the agreement.</p>

<p>Guaranty—Construction of.</p> <p>Where a firm guaranteed the payment of a dividend of seven per cent per annum upon stock issued by a company as long as held by a party, and that they would make good to the party all deficit from the account: Meld, that the guaranty was a personal contract, and that no recovery could be had against the personal representatives of the surviving member of the guarantor for dividends accruing and becoming payable since his death.</p>

Writ of certiorari to review the legality of an assessment made against the relator for the personal estate of the testator, amounting to the sum of $375,000.

<p>Appeal from an order approving the form of an undertaking given on behalf of the respondent in an action of replevin.</p>

<p>Appeal from an order denying a motion for a refereno to take proof of title.</p>

Appeal by the defendant Annie R. Platt from two orders made on the 29th day of May, 1886, denying an application for an order directing the referee to take proof of any hens that might be presented to him, and directing the referee to take proof of judgments, and from an order confirming the report of the referee for the distribution of the proceeds of lands sold in three actions of partition.

<p>Appeal from an order granting a motion to continue an injunction.</p>

<p>Appeal from an order denying a motion to vacate an order of arrest.</p>

<p>Appeal from an order overruling an exception to the report of a referee and affirming his report.</p>

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

<p>Principal and agent—When agency implied.</p> <p>Where, in an action brought to recover the value of goods alleged to have been furnished defendant, the evidence showed that one B who ordered them was a director of the defendant company, and a contractor with said company to do certain work at a stipulated price; that the account was opened in the name of the defendant company by B, and the goods sent from day to day to the place of business of said company, and B was found at said place of business apparently acting as agent for the company; that the goods were billed to the company, and on each sale bills were mailed to the company at its place of business; that payments were made on the monthly statements apparently in the name of the company; that afterward one II, who was concededly the agent of the company, called upon plaintiff and said he was now manager of the company, and that he "would in future attend to the ordering of goods and carrying on the business,” and no new account was opened, and payments subsequently made were credited generally on the account, and were not directed to be applied specifically to the goods purchased on H's order. Held, that there was evidence of an implied agency in B which the company was estopped from disputing.</p>

<p>Appeal from a judgment recovered at the special term. Birdseye, Cloyd & Bayliss, for appl’t; Wm. F. McRae, for resp’i.</p>

<p>Appeal from order of the special term confirming the referee’s report in proceedings to ascertain the right to surplus moneys arising in the above entitled action upon the sale of certain real estate in partition.</p>

<p>Practice—Judgment—Executors and administrators—Action by— When may be maintained in their representative capacity or AS INDIVIDUALS—CODE ClV. PRO., § 1207.</p> <p>Where an action was brought by certain persons, administrators, etc., and an endeavor was made to have "the judgment reversed on the ground that the action should have been brought by said persons individually: Held, that where the facts are clearly set forth in the pleadings and disclose a legal right of action in the plaintiff, it is not the practice to dismiss the action and require another more strictly and accurately formal to be brought for the recovery of the money. See Code Civ. Pro.; § 1207.</p>

<p>1. Executors and administrators—Who entitled to appointment op ADMINISTRATOR WITH WILL ANNEXED—WHEN RESIDUARY LEGATEE MUST be appointed—Code Civil Pro., §§ 2643 and 2693.</p> <p>Letters testamentary issued under the will of the testatrix had been revoked, and only two of the residuary legatees were qualified to act as administrators with will annexe.!, and one of said two declined to take out letters. Held, that the surrogate must appoint the remaining residuary legatee administratrix with will annexed, under Code Civil Procedure, section 2643, which is not qualified Dy section 2693.</p> <p>2. Same—Presumption as to performance op duty.</p> <p>Where the appointment of said residuary legatee as administratrix, etc., was resisted because of the fact that the remaining asset of the estate unadministered consisted of a large demand against her husband, which demand had been put in suit and resulted in a judgment in his favor from which an appeal had been taken. Held, that the presumption is that she will discharge the duties which the law enjoins upon her as administratrix of the estate. That without proof that she will disregard her duty to employ competent counsel to prosecute the appeal, it is not to be inferred that any danger exists of the least neglect or dereliction on her part.</p> <p>3. Same—When may be removed—Code Civil Pro., § 2685.</p> <p>In case as a matter of fact she should fail to discharge her duty then under subdivision 2 of section 2685 of the Code of Civil Procedure the surrogate has authority to remove her from office.</p>

<p>1. Railroads—Street railroads—Passenger may reimburse himself FOR MONET DEPOSITED BY MISTAKE IN THE BOX IN EXCESS OF HIS FARE BY RECEIVING THE FARE OF OTHER PASSENGERS.</p> <p>Plaintiff was a passenger in the car of the defendant company which was operated by the driver himself without a conductor. On entering the car he put into the box used for that purpose five fares for himself and three companions, and upon discovery of the mistake he applied to the driver for the restoration of the excessive fare placed in the box. This was refused by the driver, who having no authority himself to return the fare or correct the mistake, directed plaintiff to repair to the company’s office for his money. This refusal resulted in a wordy altercation between plaintiff and the driver, which continued until the time when a lady entered the car, who delivered her five cents fare to plaintiff, which he placed in his pocket. The driver afterwards insisted upon his depositing this fare in the box, which he refused to do, and the driver removed him from the car and delivered him into the custody of a policeman, and he was confined in the station house over night, and in the morning a charge was preferred against him by the driver. When it came before the police justice plaintiff was discharged. He then brought this suit for false imprisonment. etc., and the trial court dismissed the complaint. Held, that the regulation requiring plaintiff to go to the office was unreasonable: that as the driver was not authorized to reimburse him he was at liberty to do so by receiving for that l.urpose the fare of any passenger entering the car. Davis, P. J., dissenting.</p> <p>2. Same—Liability of company for acts of servants.</p> <p>A railroad company is liable to the same extent as an individual for any injury done to a passenger by a person in the course of his employment, who is in the service of the company. This liability will include the entire injury and indignity to which plaintiff was subjected, not only by his removal from the car, hut by his subsequent imprisonment and detention at the station house. Davis, P. J., dissenting.</p>

<p>Jurisdiction—City marshal—Bond on how prosecuted—Laws 1868, chap. 484.</p> <p>Plaintiff wishing to prosecute the official bond of a certain city marshal for official misconduct, under the Laws of 1862, chapter 484, section 6, made a motion before a judge of the court of common pleas for an order granting leave to prosecute sáíd bond in his name in the supreme court, and an order to that effect was granted by the judge. Held, that the judge had no power to make such an ordr r, and that plaintiff had not acquired the right to prosecute the bond. That said judge only had the power to grant the right to prosecute said bonds in the city court of New York or one oí the district courts. See section 7 of said act.</p>

<p>Appeal from judgment dismissing complaint, and from order denying motion for new trial on the ground of newly discovered evidence. *</p>

<p>Appeal from an order adjudging the defendant to be in contempt for the non-payment of alimony, and directing his commitment to prison until such payment shall be made.</p>

<p>1. Bills—Notes—Collection of—When correspondent cannot retain THE AMOUNT COLLECTED AGAINST REAL OWNER.</p> <p>The property in business paper received for collection by one engaged in the business of banking and collections forwarded by him to his correspondent in the usual course of such business, without any express agreement in reference thereto, does not become vested in the correspondent, although he may have remitted upon general account in anticipation of collection.</p> <p>2. Same—When correspondent can retain proceeds.</p> <p>It is-,only, where, by express contract or well established course of dealing, the correspondent becomes responsible for the collection, and cannot seek reimbursement of advances in case of non-payment; that the correspondent can retain the draft or the proceeds of the collection as against the real owner.</p>

<p>1. Trial—Complaint—Motion to dismiss—Effect op, in submitting QUESTIONS OF FACT TO COURT.</p> <p>At the close of the evidence on a trial, defendant moved for a dismissal of the complaint upon several grounds, and neither party asked to go to the jury upon any question of fact. Hi Id. that the effect of submitting the mot on to dismiss to the decision of the court, and the omission of the plaintiff 11 ask to go the jury upon the questions of fact specified as grounds of the motion, or any other question of fact, vías to submit these questions to the court upon the evidence. • '</p> <p>2. Fraud—Must be affirmatively shown. '</p> <p>Fraud will not presumed, it must be affirmatively shown.</p> <p>3. Corporations—Action against stockholders in, under Laws 1884, chap. 40, § 10.</p> <p>Under Laws 1848, ch. 40, § 10, all the stockholders of every company incorporated under that act are severally and indvidually liable to the creditors of the company to an amount equal to the amount of stock held by them respectively, for all the debts and conti acts of the company until the whole amount of its capital shall have been paid in and a certificate made and recorded, as thereafter provided by that act. Held, that under the section quoted the remedy is by a suit for an accounting to fix the pm mta liability of the stockholders, and not by a suit to recover the whole debt from an individual stockholder.</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 denying a motion made to join and implead certain parties as defendants in this action.</p>

<p>Bills and notes—Equities—When person not a bona fide holder for VALUE.</p> <p>It is always competent for the maker of a note to fix the condition upon which the note shall he transferred, and to prohibit its transfer unless that condition be complied with, and one who takes a note, the use of which is restricted, as collateral securtiy for an antecedent debt cannot recover upon it.</p>

<p>1. Guardian—Infants—Jurisdiction of court in matters relating to.</p> <p>The supreme court may interfere for the protection of infant children whenever a proper case may appear for that puipose. It is not necessary that the party supplying the information shall disclose an injury to himself, or that any of his rights shall he shown to be jeopardized, but that he shall show such a state of facts as will render it evident to the court that it should interpose for the protection of the infants. When that information is supplied it is the court which acts and directs the proceedings found to be necessary to fully inform itself and indicate what action in the premises may appear to be proper.</p> <p>2. Same—Court may remove a testamentary guardian.</p> <p>The court has power to deprive the parents of the custody of their children, and as the parent can not delegate any more complete or irrevocable authority than he or she may possess, it has also the power to remove a testamentary guardian appointed by the parent.</p> <p>8. Same—Reference on proceeding to remove testamentary guardian—When an irregular admission of matters before tile REFEREE WILL NOT VITIATE AN ORDER BASED UPON THE REPORT.</p> <p>Upon the hearing of a petition for the removal of a testamentary guardian, affidavits were produced and read on behalf of the petitioners as well as on behalf of the guardian, and the court directed a reference to take proof of the facts. On the hearing before the referee the counsel for the petitioners proposed that he should receive not only the petition, but the affidavits. Held, that these papers having been presented to the referee as disclosing the allegations made by the parties to the controversy and not as evidence, and the referee having made his decision upon the evidence of the witnesses examined on the hearing, the admission of them was not such an error as to call for a reversal of an order made upon the report of the referee.</p> <p>4. Same—What held sufficient ground for removal of a testamentary GUARDIAN.</p> <p>Where the guardian neglected to protect the wards from immoral influences. Held, that such conduct warranted the removal of the guardian.</p>

<p>1. Contract, for sale of goods—When delivery not complete upon loading of goods on the vessel.</p> <p>C. and Co , of Liverpool, entered into a contract, dated New York, certain specified quantities of three distinct and separate qualities of iron for different prices “ all free on board Liverpool, payment by sixty days sight bill of exchange against shipping documents here less two and one-half per cent.” Held, that the contract neither provided for nor eontemplated'an inspection or examination of the iron by P. & Co., at Liverpool. That no intervention on their part was provided for, but the obligation to deliver the quality of iron mentioned and described in the agreement free on board at tljfit- pjaqe'was wholly cast upon:'C. '&"Co.,'ánd"that "if they failed to perform -it, P. & Co. had the right upon, the discovery of that fact oji its.anStaTto..reject so much ,of tlie .iron, as failed to comply with the term of the5 contract"(cases cited and uisiinguished).</p> <p>3. Same—Acceptance—When examination must be made</p> <p>HM, that the law requires no more than reasonable diligence in the examination of property shipped, or offered to the purchaser after its arri\ al. That P. &Co., were not required to dispense with tlie other demands of their business and devote immediate attention to the iron as soon as it arrived; but that-it was their duty to proceed reasonably as they would" be expected to do with other urgent matters of business.</p> <p>3. Same—Right of inspection in executory contracts.</p> <p>. Held, that the light of inspection arid and" examination precedes the obligation to accept the property, where the sale is executory and the property itself is unascertained or separated.</p> <p>4. Same—When severable—When can be accepted in part and rejected in part.</p> <p>On a certain steamer was shipped by C. & Co. to P & Co.-, a lot of iron containing a certain quantity oí each of two kinds of the iron. The iron of one kind was accepted, hut that of the oth. r rejected, being of inferior quality. By the agreement these were distinct and separate quantities of iron, whi. h 0. & Go. agreed to sell and deliver for different prices. Held, that the contract of sale was not entire but severable in its nature alloy ing tile purchaser to receive that distinct part of the property complying with the terms of the contract and reject the other distinct part that failed ro he of the description of property agreed to he sold. That by so doing P. & Co. did not rescind the contract, but, were entitled to recover from 0. & Co., under the contract what they had paid upon the iron not accepted and for any loss . ustained in consequence of a change in its market price.</p> <p>5. Same—When part payment is not an acceptance.</p> <p>It was essential that P. & Co. should possess the “ shipping documents " in order to be able to obtain any control of the iron. Held, that the payment of money on the delivery as required by the contract on the supposition that the contract had been performed by C. & Co. was not a waiver of P. & Co. to insist upon the iron being according to agreement.</p> <p>6. Same—Shipment from a port other than agreed upon—Effect of.</p> <p>Part of the iron was shipped from a port other than Liverpool and refused for that reason. Held, that C. & Co. were bound to ship.the property as provided in the agreement and having failed to do so, P. & Co. were relieved from receiving or accepting the iron so shipped.</p>

<p>1. General assignment for the benefit of creditors—Partner may DEVOTE HIS INDIVIDUAL PROPERTY TO THE PAYMENT OF FIRM DEBTS.</p> <p>A par ner may by a general assignment for the benefit of creditors, appropriate bis own individual property, as well as that of the firm, to the payment of partnership debts.</p> <p>á. Same—By Surviving partner may include firm property.</p> <p>A surviving partner may make a general assignment for the benefit of creditors, and include in it property of the preceding firm.</p>

<p>1. Ferry franchises—Hew York city—Consolidation act—Wharves and piers—Legality of sale by commissioners of sinking fund— Laws 1882, chap. 410.</p> <p>An action was brought by S. the plaintiff, as a taxpayer, under chapter 531, Laws 1881, to restrain the completion of the execution and to. set. aside a contract for a lease of a wliarf and ferry franchises in the city of New York. The wharf and bulkhead was situated at the foot of Whitehall street (which was not a uistriet appropriated by the department of docks to special comme; cial inte ests/, and one of the ferry routes extended from that street to Staten Island, the other from ihe same point to Bay Ridge on Long Island. The franchises were advertised to be let to the highest bidder for a certain term from June 1, lt84. The rental of the wharf property was pieviously fixed and mentioned in the notice ;.t the sum of $10,u00, and the ferry franchises were to be offered atan upset price of five per cent of their gross receipts. The sale took place as it was advertised, and the S. I. R. T. Railroad Company purchased tli; term and franchise for which a lease was to be executed and delivered to it. Before the sale was made, objections were presented to the right of the sink ng fund commissioners to make it in this manner. Bids were refused at the sale proposing a higher rental for the wharf and an advance over the upset price for the ferry franchise, it being determined at the ti ne of the sale that the rental had been fixed for which the lease of the wharf was to be made. Held, that the consolidation act (Laws 1882 chap. 410, § 716) required that the lease of the wharves be sold to the highest bidder. That the determination of the rent by the commissioners was in violation of the statute and their proceedings were illegal, and that they should be restrained from carrying them into effect, and so far as they may have been consummated they should be vacated and annulled.</p> <p>S. Same—Who may acquire ferry franchise—What ferry franchises MAY BE ACQUIRED BY STATEN ISLAND RAPID TRANSIT R. R. COMPANY— Laws 1884, chap. 193.</p> <p>The S. I. R. T. Railroad Company was incorporated under the general railroad law of this state to construct and operate a railway between certain points on Staten Island. Held, that it was no part of its organization to acquire a ferry right or to run or operate a ferry from the terminus of its road to the city of New York. That while Laws 1884, chapter 193, was sufficiently broad to entitle said road to acquire the right to do this, it does not confer upon the company the power to lease another distinct ferry to be operated fro n. the city of New York to Bay Ridge.</p> <p>3. Same—Party plaintiff—When taxpayer may bring action to set aside lease of city property—Laws 1881, chap. 531.</p> <p>S. was a bidder at the sale and was interested in the use of the wharf and the ferry franchise previous to the time of the making of the sale. Held, there was nothing in these facts disabling S. from maintaining the action under Laws 1881, chapter 531.</p>

<p>1. Pleadings—Partnership—When not a material issue.</p> <p>Action was brought on a promissory note alleged to have been made by the defendant to the plaintiffs. Plaintiffs alleged that they were partners doing business under a firm name. The answer admitted by not denying that the defendant made and delivered the note to plaintiffs; that it was wholly unpaid and that the plaintiffs were owners and holders of it. Held. that it was immaterial whether or not the plaintiffs were co-partners, and that ti.e court erred in treating it as a material issue.</p> <p>2. Non-joinder of parties plaintiff—When waived—Code of Civil Procedure, § 488.</p> <p>Held, That assuming it to be material, the misjoinder and non-joinder were waived by not averring them in the answer. Code Civ. Pro., § 488.</p>

<p>Practice—Submission of controversy under Code Civ. Pro., § 1879— Bound by relief agreed upon—Code Civ. Pro., § 1880.</p> <p>7 he parties to an action agreed to a statement of facts in an action and submitted it to the court, under Code Civ. Pro.. § 1279. This case, as submitted, declared the relief which should be awarded if the f cts submitted entitled the plaintiff to redress. The case was decided in favor of the plaintiff and judgment entered in accordance with the agreement. On a motion to grant a different relief, I-ield, that tile court had no au hority under Code Civ. Pro., § 1280, to change the pari of the agreemmt m de by the parties, as to the relief which should be awarded to the plaintiff in case it should be held lie was entitled to recova-.</p>

<p>Will—Construction of “legal representatives.”</p> <p>Opposition to the probate of a certain will having keen made, an agreement was entered into by which it was to be abandoned upon the widow’s paying one-half of the net income to the children during her life; that is, one-eighth o each of the four children. It also pro ided, “ and it is hereby further agreed that in case of the death of either of said four children during the widowhood of the said party of the first part she will pay the one-eighth part of said income hereby agreed to be paid to the child so dying to his or her le al representatives so long as the said covenants and agreements shall be observed,” etc. One of said children died and devised and bequeathed “ all interests acquired and to be acquired by me from the estate of my late father ” to her husband. Held, that the interest being an absolute undertaking to pay a certain sum, created an absolute right to receive and transfer it, and authorized the disposition of it by will to any person or persons whom the testator thought proper to name.</p>

<p>Appeal from an order of the special term requiring the respondent, one P. A. Hargous, to pay over to the petitioner the sum of $880.</p>

<p>Appeal from order of the special term, denying motion to confirm the report of a referee and order judgment thereon for plaintiff in an action of divorce.</p>

<p>Appeal from a judgment rendered at the special term construing a will.</p>

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

<p>Appeal from an order directing a reference to take proof and report how much of the sum of $9,818.35 the attorney is entitled to retain as compensation for his services in an action in the city court of Brooklyn.</p>

<p>Appeal from an order staying proceedings upon a reference made in a motion for restitution.</p>

<p>Motion for reargument of an appeal.</p>

<p>Appeal from an order denying a motion for a temporary injunction.</p>

<p>Appeal from a judgment entered upon verdict.</p>

Appeal by Susan F. Platt, from an order directing the referee to inquire concerning the liens of judgments, and from an order confirming his report.

<p>Appeal from a judgment entered upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial.</p>

<p>Appeal from an order directing a reference and denying an application for a settlement, and making of findings of fact and law, and motion by respondent to dismiss the appeals.</p>

<p>Appeal from a judgment recovered on an order overruling a demurrer to the plaintiff’s complaint as frivolous.</p>

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

<p>Partnership—Dissolution—Accounting—Interlocutory judgment— Question op pact.</p> <p>In an action for an accounting of a partnership existing between the parties and for a dissolution of the same, the trial court having determined upon conflicting evidence that such partnership had been formed between the parties and an interlocutory judgment having been ordered dissolving the partnership and directing an accounting: Held,, that the conclusions based upon the evidence being correct the judgment should be affirmed.</p>

<p>1. Practice—Finding of fact—Upon general evidence—Circumstances justifying.</p> <p>In a judgment creditor’s action to set aside an assignment for the benefit of creditors as fraudulent because it included partnership property out of the proceeds of which the assignor’s individual indebtedness was first directed to be paid, it was found by the trial court that the assignor was the surviving partner of the firm and that he had purchased the interest of his deceased partner. Held, that the fact that the witness who testified to this * had been called and examined by the party assailing the assignment, and he having had an opportunity to examine precisely as to the circumstances under which the interest was acquired, his failure so to do strengthened the very general evidence supporting the conclusion and justified the court in so finding.</p> <p>2. General assignment by partner having purchased interest of deceased PARTNER MAY DIRECT PAYMENT OF INDIVIDUAL DEBTS BEFORE PARTNERSHIP DEBTS.</p> <p>Held, there being nothing to show that the business was at the time of the purchase insolvent, and that the embarrassments leading to the assignment arose subsequent to the decease of the other partner, and the purchase having been made in good faith, that the surviving partner might execute and deliver a general assignment of the form now in controversy.</p>

<p>Appeal from a judgment entered on the report of- a referee and order of the special term.</p>

<p>Appeal by the defendant Annie B. Platt, and the petitioner Edwin N. Martin, from an order denying a motion made to stay the distribution of the proceeds of real estate derived under sales made in partition.</p>

<p>Practice—Answer—Irrelevant matter stricken out.</p> <p>In an action brought to obtain a judgment requiring a transfer on the corporate books of the defendant of 273 shares of its stock claimed to be owned by the plaintiff, the answer, among things, set forth by way of de- ■ fense the manner in which and the laws under which the corporation was organized, and that there was an agreement as to who should manage the company, etc., and that the interference of a California receiver as stockholder of record of a majority of the stock, and so electing trustees and officers, would be an interference with apd.inconvenience to Hew York citizens and stockholders by a foreign receiver not permissible in a court of equity, etc. Held, that this matter was entirely irrelevant and properly stricken out.</p>

<p>Will— Publication—What proof of, will justify the submission of THE QUESTION TO THE JURY—No FORMAL STATEMENT NECESSARY.</p> <p>Mr. Einigan, a lawyer, having been advised by one Sheridan that John Jones wished him to draw his will, called upon Jones in the afternoon and it was agreed that the will should be drawn and executed at seven o’clock in the evening of the same day, at which time the witnesses were to be present. Einigan, Jones, Furlong and Sheridan met on that evening, and the will was then drawn from instructions given by Jones and in hi s' presence and read to him by Einigan. He said it was correct, but would rather have Sheridan read it over to him, which he then did carefully and slowly. He then signed it, and Mr. Einigan said to him, “I will sign it as a witness and then Sheridan,” to which he answered, “ All right;” and when Furlong signed it he said, “Put your residence there; don’t forget that.” In an action of ejectment impugning the validity of defendant’s title acquired under said will, the will was offered in evidence and rejected on the ground that there was not sufficient evidence of due execution. Held, that the court erred in refusing to admit the will in evidence; that the question as to its due execution should have Tbeen submitted to the jury.</p>

<p>Appeal from an order adjudging the defendant in contempt, and fining him the sum of $834.63, with ten dollars costs.</p>

<p>1. Railroad—Easement of light from a street—Abutting owners RIGHT TO RECOVER DAMAGES FOR INTERFERENCE WITH IT.</p> <p>Plaintiff brought this action to recover damages to a four story brick building belonging to him, s tuated on the corner of McDougal and West Third str ets, in New York city, resulting from the construction of an elevated road in West Third street, by the defendant, the Metropolitan Elevated Railway Company, and from the operation of the same by the defendant, the Man íattan Railway Company, which had become the lessee of the same, in 1879. Held, that while the defendant did not own the fee of the street, he had an easement of light therefrom, and such easement entitled him to maintain an action to recover the damages occasioned by any interference with, or interruption of the passage of the light from the street to his property. Following Gtorj v. New York Elevated Railroad, Company, 90 N. Y., 122.</p> <p>2. Same—What to be considered in determining the amount of damages.</p> <p>In determing the amount of the damages, the operation of the road as an entirety must he considered, and as the running of trains constitutes an essential part of the operation of the road, the interruption of the light occasioned thereby is to be considered as arisi. g from the structure and its uses, and as forming a part of the disturbing cause.</p> <p>3. Same—when one erecting and leasing road is liable for damages' RESULTING FROM THE RUNNING OF TRAINS BY LESSEE OF THE ROAD.</p> <p>The Metropolitan Railway erected the structure and equipped it for use, and on May 29, 1879, leased it to the defendant, the Manhattan Railway Company. Held, that such leasing did not prevent judgment from being given against both, as the first company by leasing it, when equipped for use, to the other defendant, continued the wrong complained of.</p>

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

<p>Evidence—Testimony oe counsel as to communications had with a DECEASED PERSON WHOSE WILL HE DREW—ADMISSIBILITY OE—CODE Civ. Pro., §§ 835-836.</p> <p>Upon an application for the probate of a will which was resisted upon the ground of undue influence, the counsel of testatrix, by whom the will and codicils were prepared under her direction, and who as such counsel superintended their execution and publication, being called as a witness to show what transpired between the testratrix and himself at the time he was called upon to prepare the will and codicils: Held, that an objection to such testimony, as inadmissible under sections 835 and 836 of Code of Civil Procedure, was properly overruled. That even if this were not so it should not defeat the probate of the will in this case, because if the testimony so far as objected to were eliminated from the case, the evidence remaining would not be sufficient to justify a finding that the will and codicils were made by the decedent under what the law recognizes as undue influence.</p>

<p>Appeal—When dismissed because copies oe case not pboperly served.</p> <p>Where no properly certified copies of the case have been served and the papers served were returned with objections, on a motion to dismiss, the respondent is entitled to succeed unless appellant is relieved on terms.</p>

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

<p>Motion by the respondents for a reargument of this appeal.</p>

<p>Counterclaim—In action by executor or administrator—What allowed as.</p> <p>It is provided by Code of Civil Procedure, section 506, that in an action brought by an executor or administrator in his representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the deiendant as a counterclaim. Held, that the exclusion of such a demand in a case so brought was erroneous.</p>

<p>Appeal by Charles Lewis and others from an order denying their application to be made parties'to the action of Bergerman and others against Hake and another.</p>

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

<p>1. Specific performance—Contract for sale of land—Abatement may BE MADE FOR DEFECTS IN PROPERTY.</p> <p>This action was brought to compel specific performance of a contract made by the plaintiff for the conveyance of real property to him by the defendant. The property was subject to a mortgage which the plaintiff agreed to assume, and the resiiue of the purchase price was to be paid by him to the defendant. At the time and place agreed upon the plaintiff presented himself to receive the deed and perform his part of the contract. A deed in the form required by the contract and execu ed by the defendant was tendered to the plaintiff and by him refused on account of taxes and assessments which were unpaid and liens upon the property. It was also objected that there were two mortgages unsatisfied of record, and that the property was in part incumbered by a party w.Jl agreement binding the owner of it to pay one-half of the expense of building the wall whenever that should be used. Held, that the plaintiff was entitled to insist on a specific performance of the contract. Where property has been made the subject of a contract to convey, the vendee, if he elects to take it with its infirmities or defects, will be entitled to receive it with a corresponding abatement or deduction sufficient to meet or obviate the incumbrances or defects of title.</p> <p>2. Judgment—Part not appealed from is conclusive upon an appeal FROM OTHER PARTS.</p> <p>Upon the trial, the court directed specific performance of the contract, after pro. iding for the satisfaction or extinguishment of the incumbrances, except that alleged to have arisen out of the party wall agreement. This was held to be personal to the parties executing it and to form no charge upon the land. Held, that the plaintiff not having appealed from the judgment, this part of the determi -ation of the court was conclusive upon’him, and that the party wall agieement must be regarded as forming no charge upon the land.</p> <p>3. Interest—When purchaser chargeable with interest on purchase MONEY.</p> <p>It appearing that the defendant would have extinguished the other charges upon the land, and that the performance of the contract had been delayed by plaintiff’s insisting upon the objection arising from the party wall agreement. Held, that the defendant having been made liable for the payment of the assets and profi's received by h:m during the reriod which had elapsed since the date agreed upon for the performance of the contract, the plaintiff should be charged with the payment of legal interest upon the purchase money for the same time.</p> <p>4. Extra allowance.</p> <p>Held, that an allowance of $500 made in favor of the plaintiff was error, Davis, P. J., dissenting on this point. Held, that the suit was compelled by defendant’s conduct, that tile case was important in the amount involved and questions to be determined, and that it was "extraordinary” within the definition of t. at word by the courts. That therefore the allowance should not be disturbed.</p>

<p>1. Receiver—Sot responsible for mere errors in judgment in the PERFORMANCE OF HIS DUTIES—COMMISSIONS.</p> <p>In An action to set aside a fraudulent agreement induced by the defendants, and for an accounting between the parties who were partners as an incident of the copartnership, a receive: was appointed, tho order, among other things, authorizing him to carry on the shipping business as before carried on to such an extent only : s to charter the vessels of the copartnership for hire until they could be sold to advantage, and to sell them upon such terms as he might deem proper, subject to the approval of the court. Held, that errors in judgment in not selling the interests in the vessels, or some of them, at an earlier date, would not alone subject the receiver to a loss of commissions.</p> <p>2. Same—Expenses of sale of property owned in common should be APPORTIONED,</p> <p>Upon an accounting by the receiver: Held, that upon the sale of the vessels each share should bear its burden in the payment of all expenses, and that the accounts of the receiver did not show how much, if any, of the gross sum collected and disbursed would, upon an apportionment, be represented by the shares owned by the copartnership, nor how much by the shares held by the owners, the amount to be deducted for dividends should be increased, and that for commissions correspondingly diminished; that the receiver should not be permitted to charge the copartnership for services performed partly for it and partly for other-.</p> <p>3. Same—Receipt and investment op money do not entitle receiver to commissions.</p> <p>The receipt of a sum on a sale and investment to produce income is not such an act of receiving and paying out as entitles a receiver to commissions.</p> <p>4. Same—Commissions—Payments entitling receiver to.</p> <p>The copartnership held a mortgage upon a vessel, which was foreclosed by the receiver and the vessel bought in. Held, that he was entitled to his commissions on the money which was in his hands as part of the assets and which he employed in the purchase.</p> <p>5. Same—AVhat allowed as commissions—Code Civ. Pro., § 3330.</p> <p>A receiver is entitled in addition to his lawful expenses to such a commission, not exceeding five per cent upon the sums received and disbursed by him, as the court or judge by whom he is appointed allows. See Code Civ. Pro., § 3330.</p> <p>6. Same—Receiver—AVhat losses of funds he is not responsible fob.</p> <p>The receiver having deposited some of the funds in a bank, which be•came msolvent: Held, that the deposit not being unusual, and the bank at that time being in good credit, and the act being such a one as a prudent conservative business man might have done, he should not suffer therefor.</p>

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

<p>Appeal from a judgment in favor of the plaintiff, entered on a verdict after trial at the circuit; and from an order denying a new trial, made upon the minutes of the justice before whom the action was tried.</p>

<p>Motion by defendant for a re-argument of the appeal taken in this action.</p>

<p>Case submitted for the decision of the court upon an agreed statement of facts.</p>

<p>Appeal from an interlocutory judgment overruling a demurrer to the complaint, and from an order vacating and resettling such judgment.</p>

<p>1. Contract—Construction of—What included in terms of contract.</p> <p>The application and specification of the defendant B. to the Bureau of Buildings did not state that fire escapes were to form part of the building, but contained an agreement or statement adopted as part of them, that in the construction of the building therein described the provisions of the building law would be complied with whether specified or not. Held, that one of the requirements of the building law in regard to fire escapes not having been complied with, the building was not completed according to the specifications.</p> <p>3. Conveyances—What will not serve to set aside—Action for damages.</p> <p>The failure to perform a stipulation contained in a contract for the conveyance of property when the act is not to precede the conveyance its-. If cannot be relied upon as a condition to annul the conveyance, but will supply the legal groundwork of an action for damages for the non-per formance of so much of the agreement.</p> <p>3. Condition precedent.</p> <p>Where the performance of one act is to precede that of another the legal obligation to perform the latter is dependent upon the performance of the former as a condition precedent.</p> <p>4. Escrow—Delivery in escrow to an agent becomes absolute.</p> <p>A mortgage cannot be delivered in escrow to an agent of the mortgagee. Such delivery would be absolute in the judgment of law.</p>

Motion on the part of the corporation above named for the appointment of three commissioners to determine whether its railroad ought to be allowed to be built.

<p>1. Contract—By one railway to secure payment of interest on bonds-of another is lawful.</p> <p>An agreement was made by one railway company with another that, in consideration of the latter using its influence and exercisi g its co trol to-promote the interests and business of the former company, it will make good any deficiencies in the net earnings of that company to meet its-interest upon its then existing bonded indebtedness from time to time as-the same may become payable. Held, that none of the provisions of the-agreement were obnoxious to the law of this slate.</p> <p>2. Same—May be secured.</p> <p>As collateral security for the performance of its agreement to exert its. influence in favor of the other company, the party so contracting agreed to-cause a deposit of a majority of its capital stock with that company in any manner required, upon which, so long as the management of the party so depositing should be satisfactory, the party receiving the stock should give its representative the right to vote; that in event of dissatisfact.on the-party receiving the stock sir- uld, by the exercise of the voting power on that stock, appoint such a board of management as would carry out the agreement. Held, that the principal contract being unlawful the perform • anee of it might be thus secured.</p> <p>3. Same—Ultra vires—When a party is estopped from setting up defense of.</p> <p>Held, that a contract made between two corporations having been par tially executed, in an action brought upon the contract, a party who so-entered upon and enjoyed the benefits of the contract was estopped from claiming that the contract was ultra vi <s. That in order to avoid the agreement it must show it to be void as against public policy or some provision of law.</p>

<p>Certiorari to review an order or resolution withholding from the relator fifteen days’ pay as a teacher in one of the public schools of the city of New York.</p>

<p>1. Complaint—Dismissal of—When proper.</p> <p>If the evidence upon the main issue in an action be so slight or of such a character that it would be the duty of the trial court to set aside a verdict rendered resting upon it, the complaint should be dismissed. The condition of the evidence should, however, be such as to leave no doubt of the plaintiff’s failure to establish his claim, and that if there be a conflict the responsive proof should be full, complete and certain.</p> <p>2. Same—When improper.</p> <p>Where it is difficult to draw the line between the dismissal of the complaint and the submission of the issues to the jury, it is the better course to to ask their judgment.</p>

82 at the circuit, and from an order denying a motion for a new trial. None of the defendants except Huntington were served with process, nor did any but him appear in the action.

<p>1. Promissory notes—Action against maker—What is sufficient consideration.</p> <p>In an action upon promissory notes made by defendant and one I. J., one of the grounds of defense was that the notes were without consideration. It was shown that until shortly before the making of the notes I. J. had been president of the J I. Co., and that the defendant was then and thereafter vice-president; that the company was then indebted to the plaintiff in about the sum of $60,000 upon notes made by the company for its accomodation, on which J. and the defendant were respectively liable as indorsers; that the notes in suit were made as a change of or substitute for such indebtedness to the amount of such new notes. ]£. Id, that the notes were made upon good consideration.</p> <p>2. Collateral security—Taking of, on time not an extension of time OF THE ORIGINAL DEBT.</p> <p>It was urged that the action was premature, inasmuch as the collaterals pledged for the payment of the notes were not yet due when the suit was commenced. Held, that the mere taking of collateral security on time was not per se, and in the absence of any agreement beyond it, an extension of time for the payment of the original debt.</p>

<p>1. Trust — Fund impressed with—Equity will prevent improper DIVERSION.</p> <p>Where an instrument contained a provision that certain bonds therein specified should bear interest, at a rate not exceeding six per centum per annum, payable out of the net earnings of the company, and defining wliat should be deemed net earnings: t.e-d, that its effect was to declare a fund, and set it apart as a means and security for the purpose declared; that the fund became impressed with a trust in favor of the bondholders, which equity would protect from an improper diversion.</p> <p>2. Same—Parties injured have a standing in court.</p> <p>Till, that the fund, when brought into existence, inured directly and especially to the benefit of the bondholders, and that they had a standing in court to demand the protection of their rights.</p>

<p>1. Contributory negligence—Is a question for the jury.</p> <p>Contributory negligence generally presents a question for the jury. If there be any evidence from which a jury might find proper care, it is for them to pass on the question.</p> <p>2. Proper care—What is.</p> <p>Proper care in any given case is such care as an ordinarily prudent man wbuld exercise in like circumstances.</p> <p>3. Sidewalk—Right of person to use.</p> <p>A person is justified in walking along the sidewalk of a village, although its slippery condition makes it dangerous.</p> <p>4. Contributory negligence—What cannot be called negligence as A MATTER OF LAW.</p> <p>Where a person walking on the sidewalk of a village which was icy, crossed over a ridge in the middle of it, believing the walk to be safer on the other side, and sustained injuries because of the condition of the walk: Held, that he could not, as a matter of- law, be held to he guilty of negligence in so doing.</p>

<p>1. Pleading—Amendment allowed after judgment—Code Civ. Pro., § 723.</p> <p>Code of Civil Procedure, section 723, provides that the court may at any stage of the action, before or after judgment, amend any process or pleading by correcting a mistake in any respect, or by inserting an allegation material to the case. The question of allowing amendments is one resting in sound discretion, and it seems sufficient that the proposed amendment be material to the rights of the parties or to the right of either of them, and that it is in the furtherance of justice.</p> <p>2. Same—What considered a proper exercise of discretion.</p> <p>Where it was claimed by the defendants that the defense of the statute of limitations was omitted through inadvertence, the case having proceeded before the referee as though the defense were well pleaded. Reid, that the allowance of an amendment interposing the defense was a proper one.</p> <p>3. Same—Diligence;—What considered suitable.</p> <p>The motion for the privilege to amend not having been made until after judgment and appeal to the general term: Reid, that the better practice would have been to make the motion on delivery of the referee’s report, but the plaintiff not appearing to have suffered injury, and the delay having been short, the defendant was not chargeable with lack of diligence.</p>

<p>Municipal corporation—Streets—Duty in grading.</p> <p>Plaintiff owned a house and lot on Ravine street in the city of Kingston. This street was filled in according to an ordinance of said city, establishing the grade of said street. There was evidence tending to show that after the grading, water had come into plaintiff’s house and injured it, and that this had never happened before the grading. This was claimed to be due to the fact that the filling in was done with loose stone and fragments of rock Held, that the city is not bound to use impervious material for filling in its streets. That the filling in of the street with fragments of stone instead of using clay or some such material, does not give a cause of action to plaintiff (cases cited and distinguished).</p>

<p>Appeal from an order directing a nonsuit.</p>

<p>1. Civil Damage act—What may be proved to diminish damages.</p> <p>Where a woman sued under the civil damage act for damages for loss of means of support on account of her first husband’s death from intoxication: Held, that the defendants. could put in evidence the fact of the second marriage for the purpose of diminishing the damages.</p> <p>2. Same—Mother cannot recover for damage to children.</p> <p>The mother in a suit for loss of her means of support, cannot recover for any damages which the children had sustained.</p>

<p>Referee—Judgment directed by the referee where the question INVOLVED IS ONE OF FACT—WlLL NOT BE DISTURBED ON APPEAL.</p> <p>Where an appeal was taken from a judgment directed by a referee:' Held, that the case being purely one of fact, dependent to a considerable extent, if not entirely, on the credibility of witnesses, it could not properly be disturbed on appeal</p>

<p>1. Chattel mortgage—Discharged by assignment to mortgagor.</p> <p>A chattel mortgage was executed by a manufacturing corporation on its machinery, etc., attached to the realty, of which realty said corporation was owner, subject to a mortgage. The realty was sold to a third party on foreclosure of said mortgage, and afterward the chattel mortgage was assigned to the said corporation, who claimed the right to remove said machinery. Held, that the assignment of the mortgage to tlxe. corporation operated simply as a release and discharge of the mortgage lien. That by it the corporation was simply restored to its original rights as respects the title to the property held by it when the mortgage was given.</p> <p>2. Same—Mortgage oe real estate—Right of mortgagee to accessions.</p> <p>A mortgagee of real property is entitled to liaye his lien respected as to all that was realty when he accepted the security; also as to all accessions to the realty, save when the accession is made under an agreement with a party that its purchase price or expense shall be secured and is secured by a lien thereon. Such lien so agreed upon and perfected would he paramount to that of a prior mortgagee of the freehold. But, in the absence of such security on the accessions, the prior lienor must have the benefit of the accession under his lien.</p> <p>3. Same—How may be proved—Town clerk’s certificate only proof of'filing of the paper—Code Civ. Pro., § 934.</p> <p>A copy of the chattel mortgage under which the plaintiff made claim to the property, filed in the town clerk’s office, was admitted in evidence against exception, on the certificate of that officer made pursuant to Code Civ. Pro., § 934, without proof of the existence and due execution of the original. Held, error, that the certificate of the town clerk went only to the filing of the paper in his office. '</p> <p>4. Fixtures—Tests to be applied in deciding whether fixtures or not.</p> <p>The tests to be applied in determining whether machinery is a “fixture” are whether the annexation of the property to the freehold is of a permanent character; another is its adaptability to the use of the freehold, and yet another is the intention of the party at the time of making the annexation—not that each and every one of these tests should he in fact established in order to fix the property as part and parcel of the freehold, but that the case should be examined in view of such tests.</p> <p>5. Same—Evidence—Intent must be shown by fact.</p> <p>The intent with which machinery was put in as to its being a “fixture” is to be determined from the facts and circumstances surrounding the particular case, and it is not admissible for the person who put said machinery in to testify that it was not his intention in putting certain property into a mill to make it an annexation to the freehold. (Landon, J., dissents.)</p>

<p>Mortgage—Foreclosure—Want op consideration—Evidence—Finding OP REFEREE WHEN NOT DISTURBED ON APPEAL.</p> <p>In an action brought for the foreclosure of a mortgage, the defense to which was want of consideration, after discussing the evidence: Held, that there being a conflict of evidence, the referee was not bound to give entire and absolute verity to the statements of either side, and that having had an opportunity to observe the manner, etc., of the witnesses while testifying, his conclusions will not be disturbed on appeal.</p>

<p>Evidence—When acts and declarations oe assignee and former owner OF A MORTGAGE ARE ADMISSABLE TO PROVE ITS PAYMENT.</p> <p>Where in an action brought to have a mortgage declared satisfied by payment of the mortgage debt, the wife of the mortgagor, under objection and exception, testified that prior to the assignment of the mortgage by the mortgagee there were accountings and settlements between the mortgagor and mortgagees; that “there was a general looking over of accounts and bills on several occasions; the first looking over was September 1, 1874; $349.50 was found due my husband to be indorsed on bond and mortgage; second interview was in April, 1875; $300 * * * all due my husband from Aldermans.” Held, that the evidence was properly admitted as a part of the i es gestm to prove its payment.</p>

<p>Appeal from an order made on a motion at special term enjoining the plaintiff from enforcing a judgment recovered in this action and directing the clerk to cancel and satisfy of record the said judgment.</p>

<p>Appeal from an order and judgment of the Albany county court, affirming a judgment in favor of the plaintiff had in justice’s court.</p>

<p>Election—Rights op citizens to be present during canvass op votes.</p> <p>The inspectors of elections have a right to keep order while the vote is being canvassed; but under pretense of keeping order they have not a right to turn out a peaceable and quiet citizen whose presence does not interfere with the discharge of their duty.</p>

<p>1. Evidence in suit fob damages— Opinion as to whether symptoms WERE FEIGNED, INADMISSIBLE.</p> <p>In an action brought to recover damages for injuries resulting to plaintiff from the negligence of the defendant company, physicians had testified to the examination of the plaintiff and had given the results of such examination; then Dr. L. was asked, “Did you discover any evidence or indication of feigning, any symptoms or suffering on her (plaintiff’s) part, or had you any reason to suspect any?" and answered, “I did not;” and in answer to defendant’s question, “You mean by that you saw nothing but what you have described here?” and answered, “Yes, sir.” Held., that the testimony was properly admitted.</p> <p>2. Verdict—When set aside as excessive.</p> <p>In order to set aside a verdict on the ground of excessive damages, the .sum recovered must strike the mind as being extravagant, and under the circumstances of the case outrageous.</p>

<p>Pleadings—Allegations in complaint not denied by answer must be DEEMED ADMITTED.</p> <p>In an action to recover money alleged to be due for work done under a contract, the defendant urged against the recovery that the plaintiff had failed to prove the contract counted on in the complaint. Held, that the contract counted on in the complaint not being denied by the answer must also be deemed to be an admission that the contract was one binding on the parties to it.</p>

<p>1. Jury—Challenge to the favor—Effect of exception to allowance —When party has peremptory challenges.</p> <p>Where a party’s challenge of a juror was to the favor, and she was entitled to two peremptory challenges, which had not been resorted to: Held, that the opposite party was not injured by the allowance, even if wrong. Hildreth v. City of Troy, 101 N. Y., 334, distinguished.</p> <p>3. Highways—Commissioners—Notice.</p> <p>Notice to one commissioner of a board of town commissioners of highways is sufficient to charge the board.</p> <p>3. Same—Evidence of possession of funds.</p> <p>Proof that the commissioners had in their hands money unexpended sufficient to pay for certain repairs which were not made, is all that is necessary to prove their possession of funds. It is not necessary to show that they had sufficient to make all desirable improvements.</p>

<p>1. City of Yonkers—Water board created by Laws 1873, chap. 36, PART OF CITY GOVERNMENT.</p> <p>The water board created by chapter 36 of Laws 1873 is part of the city government of Yonkers, and the city is responsible for the negligence of said board.</p> <p>2. Same—ISTegligencb for city to allow open trench to remain in STREET FOR TWO MONTHS WITHOUT BARRIERS.</p> <p>Where the evidence showed that an open trench with an embankment of dirt from the excavation existed for two months upon the traveled part of one of the city streets of Yonkers, which was entirely unguarded by a barrier and unprotected by a light, and that plaintiff was injured by her carriage being overturned while passing slowly along’the street in the dark: Hell, the city was liable because it permitted the street to be used after such notice of its dangerous condition.</p> <p>3. Police may be used to keep city informed of condition of streets.</p> <p>It was not erroneous to charge that “ the city is provided with police and officers and other instrumentalities which they may use in ascertaining the condition of affairs in the city, and these are provided for that purpose.”</p>

<p>^Negligence—What amounts to an adoption op appliance by a contractor SO AS TO MAKE HIM LIÁBLE POE NEGLIGENCE IN USE OP IT BY SERVANT.</p> <p>Where the defendants were under an obligation resulting from their contract to furnish facilities for the inspection of their work, and acquiesced in tli* utilization of certain “ dump cars ” by the engineers for that purpose: Held, that it was a sufficient adoption or provision of a mode for the fulfillment of that portion of their contract to require diligence and care in its execution, and that the defendants were liable for the negligence of their servant in the management of said dump car, which resulted in intestate’s death.</p>

Appeal, from an order of the Kings county special term denying a motion for a writ of mandamus to the registrar of arrears to receive a sum of money alleged to be due for taxes, etc., and to cancel said taxes, hens and a certain tax sale of said realty.

Plaintiff was non-suited at the Kings county circuit, and the exceptions were ordered to be heard in the first instance at general term.

<p>Railroad—When receiver not authorized to pay claim for work.</p> <p>A receiver of a railroad company appointed by an order of the court on the application of judgment creditors, is not authorized to pay claims for work and materials furnished before his appointment.</p>

<p>1. Principal and surety—Extent of liability—Alimony.</p> <p>The defendant became surety for the payment of alimony by plaintiff’s husband at the rate of nine dollars per week, which alimony was afterward increased to fifteen dollars a week by order of the court but without the surety’s consent. The husband having failed to pay the alimony, the surety was only liable to the extent of nine dollars per week, but was not liable for the expense of the burial of the child of the parties to the divorce action.</p> <p>2. Same—Interest—When should not be allowed.</p> <p>As security for the payment of the alimony the surety had deposited certain bonds with a trustee, which bonds had been sold and turned into money to pay the alimony. If the payments, which were larger than the surety was required to make, had not been made, the money would have been without interest in the trustee’s hands. Held, the plaintiff would not be required to pay interest on the excess received but only to refund the excess.</p>

<p>Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Kings county circuit and from an order denying a motion for a new trial made on the judge’s minutes.</p> <p>' The agreement constituting the agency is in writing. It provides among other things that the agency shall continue ‘1 for the term of one year from the date hereof, or longer, with the right of transfer if mutually agreeable.” It fails to provide how the agency shall be transferred; how and what the outgoing agent shall be paid or reimbursed for the stock of patterns he or she has on hand. This defect was supplied by an oral agreement between the parties at the time the written agreement was signed. Such oral agreement did not change or vary the written contract, but simply covered a matter not embraced or fully expressed therein.</p>

Motion to dismiss an appeal, on the ground that the appellant has waived his right to appeal by accepting benefits under the decree appealed from. John Raber made an assignment to John Loughran for the benefit of creditors. In June, 1885, the said assignee filed an account of his proceedings, showing a balance remaining in his hands, after payments made by him, scarcely sufficient to pay his commissions and the expenses of accounting.

<p>1 Fixtures—Sale oe real estate does not convey fixtures which ARE NOT THE PROPERTY OF THE GRANTOR.</p> <p>Where a bank bought certain premises and agreed with plaintiff that certain fixtures therein, which could be removed without injury to the building, might remain temporarily in the building and should be plaintiff’s property, and the bank afterward sold the said building to the defendant without any reservation, he believing that he obtained title to the fixtures and refused to allow plaintiff to remove them: Held, that the title to the articles was in plaintiff, and that the unauthorized sale by the bank would not divest him of it.</p> <p>2. Same—When they are personalty.</p> <p>The question of fixtures is generally one of intention if they can be removed, and when not annexed to be permanently attached, they remain personalty.</p>

Appeal by part of the defendants from a judgment entered at a special term held in Westchester county, fixing the interests of certain parties in certain lands, and ordering the partition of said lands by sale.

<p>Fraud—What sufficient evidence of.</p> <p>Where the defendants who owned a stage route which they sold to plaintiff’s testator, represented that the route was a good paying one, that the reason for the sale was the sickness of one of the owners, that the horses and the stages were good, and the purchasers went to the stable and the horses looked well and they had seen them in the street and they seemed to be in excellent condition. And the defendants assured the purchasers that the route paid nicely, clearing itself all the time. When in fact, the horses were poor and some diseased, the good ones having been borrowed, and the route was a non paying one, etc. Held, that there was sufficient to show fraud.</p>

<p>Appeal from a judgment in favor of plaintiff, rendered ' by Mr. Justice Bartlett, at the special term held in Kings county, granting a permanent injunction against the construction of defendant’s road.</p>

<p>Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Orange county circuit, and from an order denying a motion for a new trial as against the evidence and on the judge’s minutes.</p>

<p>Practice—Service of summons by publication—Sufficiency of affidavit TO GIVE JURISDICTION—TlME TO CORRECT JUDGMENT FOR IRREGULARITY—Code Civ. Pro., §438.</p> <p>Where the affidavit on which an order for service of summons by publication was granted, stated that the defendant is a resident of the state, on information and belief, and further, that the defendant was formerly a resident of a certain county in this state, and that she was then at a certain place in Hew Jersey: Held, that the affidavit showed that no diligence would be able to secure a personal service by reason of the absence of the party, and was sufficient. That it was toe late after judgment to allege an irregularity.</p>

This is an action to compel the defendant to execute and deliver to the plaintiff a satisfaction of a certain mortgage for $5,000, made by plaintiff and his wife to East Brooklyn Savings Bank, and subsequently assigned to defendant; and to deliver up the bond secured by said mortgage. This bond and mortgage were executed September 20, 1872.

<p>Insurance—Fire—Premiums—Agent not liable for unearned.</p> <p>Plaintiff gave a note for the premiums of certain policies of fire insurance to defendant, who was the agent, and afterward delivered up the policies to the agent, demanding that they should be canceled and the unearned premiums returned, or that the loss should be made payable to 0., as trustee, to whom plaintiff had transferred the property. The agent had power to do so, and the policies provided that one or the other should be done, under the state of facts existing. The agent retained the policies- and refused to give them up on request. The defendant paid the note and obtained judgment against plaintiff for the amount which plaintiff asks to have satisfied. Leld, that she had no cause of action against the insurance agent, and the complaint was properly dismissed on demurrer. The insurance companies are alone responsible.</p>

This action was brought to recover damages for the death of plaintiff’s husband resulting from injuries received at defendant’s railroad crossing on the West Farms high road in Westchester county. The intestate Thomas Collins was driving a carriage and span of horses at an ordinary gait on the 11th of February, 1885, along the West Farms road which crosses the defendant’s tracks at a very acute angle.

<p>Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury at the circuit court held in Rock-land county, and from an order denying a motion for a new trial on the minutes of the justice.</p>

<p>Appeal from a judgment of the special term of Dutchess county exempting certain lands included in the land described in a mortgage from the lien of the mortgage.</p>

<p>1. Decedents estate—Phoof of claims against—What is not sufficient.</p> <p>Where the executor of testator was his son, who had lived upon his premises for many years before the death of the father and had been engaged in the butcher business, but upon what principle does not appear as between the father and son, and no agreement having been made by the father with the son as to rent, and no account having been kept'between them of meat or money received by the father, until about twelve years prior, when only an account of money was kept, and the executor having forgotten the book in which such an account was kept, produced a transcript containing charges covering a half year. Reid, that it was not sufficient proof of an account against the estate of the deceased.</p> <p>2. Same—Contract—Services by one living as one of a family.</p> <p>Where, at the request of the testator, his grand-daughter left her husband to keep house for him and performed domestic services for him. Reid that she did not form one of the family, but that she stood on contract, and was entitled to compensation.</p>

<p>Appeal from order denying motion to set aside execution.</p>

<p>Attachment—Vacation of.</p>

<p>Receiver—When order appointing should be vacated.</p>

<p>Appeal from an interlocutory judgment overruling the plaintiff’s demurrer to .the counterclaim interposed by the defendant.</p>

<p>Streets and alleys—Assertion oe rights granted eorty years ago— Adverse possession.</p>

<p>Appeal from judgment and order denying new trial.</p>

<p>Administration—When decree or order appointing public administrator WILL NOT BE VACATED.</p>

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

<p>Creditors’ action—To reach funds in hands of trustees.</p>

<p>Appeal from judgment entered in favor of the Mansfield Silk and Thread Co. on dismissal of the complaint, and in favor of defendant Jacobs on verdict.</p>

<p>Re argument—When motion for will be denied.</p>

<p>Appeal from judgment and order made at the Orange special term.</p>

<p>Attachment—For contempt—Motion for—Denial of conditionally.</p>

Appeal by plaintiff from an order made at special term, staying defendants proceedings, to enforce their judgment in this action, pending plaintiff’s appeal from that judgment, and denying plaintiff’s motion to “ stay proceedings of the said defendants, their agents, servants, employees or other representatives, and upon the part of the sheriff of the city and county of New York upon the judgment entered in the superior court, in the action of the Maryland Coal Company…

<p>Conspiracy to defraud—Action for damages.</p>

<p>Negligence—Question of fact—Verdict sustained.</p>

<p>Allowance—When motion for should be denied.</p>

<p>Appeal from a judgment entered upon the decision of the court after a trial at Suffolk county special term.</p>

<p>Appeal from an order made at special term, annulling, quashing and setting-aside the service of the summons.</p>

Appeals from four judgments entered upon verdicts in favor of the several defendants, rendered at the Westchester county circuit.

<p>Complaint—Amended answer—Demurrer to.</p>

<p>Amendment of complaint—Appeal—Cannot both amend—Complaint AND APPEAL FROM ORDER MAKING SUCH AMENDMENT NECESSARY.</p>

<p>Insurance (fire)—Unoccupied premises.</p>

<p>Appeal from an order made at the Orange county special term, denying a motion for a retaxation of costs.</p>

<p>Re-abgument—Appeal—When motion denied.</p>

<p>Alimony—When and what amount allowed.</p>

<p>Corporation—Partners in real estate—Statute of frauds—Proper PARTIES.</p>

<p>Negligence—Contributory negligence—What is.</p>

<p>Trespass—Title to land—Adverse possession—Sufficiency of evidence as TO.</p>

<p>Taxes and assessments—Valuation op railroad property.</p>

<p>Appeal from a judgment of the county court of Queens county, entered upon a verdict in favor of plaintiff, in an action for damages to real property.</p>

<p>Appeal from an order made at special term allowing defendant to make a -certain order, previously granted, conform to the affidavit on which said order was granted.</p>