Volume 44 — New York State Reporter

The action was brought by the plaintiff as the receiver in supplementary proceedings to set aside two chattel mortgages executed by defendant Beck, and to recover the proceeds of the sale of the property covered by the mortgages, or to recover the amount of Beck’s equitable interest therein. The following is the opinion below:

<p>PizEADiim—Amendment—Evidence.</p> <p>In an action for wages, the complaint was on- a written agreement hiring plaintiff as salesman, alleging performance by him and non-payment of salary by defendants. The answer admitted the agreement of hiring, but alleged failure to perform and claimed that defendants notified plaintiff of the breach on his part “ and thereafter no service was rendered by him.” . On the trial plaintiff offered a letter from defendants in evidence, complaining as to his manner of working, but not giving notice of a discharge. On defendants objecting on the ground that it tended to show a discharge, the court remarked that he thought the criticism correct, but “will allow you to amend,” and the letter was admitted. Me Id, no error; that the letter was admissible without any amendment, as tending to show whether plaintiff was acting under or had abandoned the contract.</p>

This is an appeal from the decree of the surrogate of Albany county, made on the final judicial settlement of the executors of the will of James McClure, deceased. The appeal is prosecuted by five infant heirs-at-law and next of kin of the deceased, individually, and Francis H. Woods as their special guardian.

<p>Bills and notes—Usury—Estoppel.</p> <p>To estop parties to a note their representations in respect to its consideration and validity must he outside the face of the note. If such statements-appear in the note, they will fall with the instrument because of the statute of usury, which would annul the instrument.</p>

<p>Railroad—Elevated—Damages.</p> <p>The fee damage to be paid by an elevated railroad to avoid an injunction may include damages to be caused in the future by the passage of trains, such as dirt, cinders, steam, smoke and odors.</p>

<p>Appeal by defendants from judgment entered upon the decision of a judge at special term.</p>

<p>Appeals from judgments in favor of plaintiffs.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered on the report of a referee.</p>

<p>Appeal from a judgment in favor of plaintiff, entered on the-report of a referee.</p>

<p>1. Usury—Injunction.</p> <p>The court is not absolutely bound to believe affidavits read in opposition to the continuance of an injunction.</p> <p>S. Same.</p> <p>The fact that the business was done by agents who claim that their principal did not authorize or know of or benefit by the usury taken, is not conclusive on the question of the principal’s liability, as notwithstanding these facts there may have been complicity between them.</p>

<p>Motion for reargument</p>