Volume 45 — New York Supreme Court Reports

<p>Title to the office of trustee of a religious corporation — it cannot he decided in an action of ejectment — meeting of members to elect trustees — who is to preside — 1813, chap. 60, sec. 3.</p> <p>Where, upon the trial of an action brought to recover the possession of real property, the title to which is vested in a religious corporation formed under the act of 1813, it appears that the plaintiffs and defendants, each claim to ! be the trustees of the corporation, and that the decision of the case turns ! exclusively upon the question, which of the contestants are the rightful trustees, the court should dismiss the complaint, as it has no power to try the title to office in such an action.</p> <p>It seems, that vacancies in the offices of trustees of religious corporations, formed under section 3 of the act of 1813, are to be filled at meetings which are to be conducted in the manner specified in section 3 of the said act, for the holding of the first meeting for the election of the first board of trustees of such corporations.</p> <p>It seems, that the deacons of congregational churches are not “ elders or church wardens ” within the meaning of those terms as used in the said third section of the act of 1813, which authorizes these' officer's to preside at such meetings; at such meetings of congregational churches two of -the members of the church should be nominated to preside by a majority of the members present.</p>

<p>Oertiobabi to review an assessment.</p>

<p>Appeal from an order made at the Erie Special Term, requiring the defendant to serve a bill of the particulars of its answer.</p>

<p>Appeal from a judgment in favor the plaintiffs, entered on a decision of the court at the Cattaraugus Special Term.</p>

<p>Action to recover a tax UlegaUy collected by a county — when it may be recovered with out first vacating the assessment — what evidence is sufficient to show a receipt of the money by the county — a claim to recover a tax illegally collected need not be first presented for audit.</p> <p>In each year from 1875 to and including 1879, the board of supervisors of the county of Cayuga included in the taxes imposed upon the taxable property of the city and town of Auburn, in that county, the whole amount of the fees and charges audited'and allowed by the said board of supervisors to the sheriff for receiving, keeping and boarding prisoners committed to jail by the Courts of Special Sessions and police justices in the said city, while the statute required that the said amounts should be assessed upon the taxable property of the county as a county charge. This action was brought by the plaintiff to recover the illegal amounts so added to the taxes imposed upon the property of the plaintiff’s assignor^, and by them paid to the city treasurer and tax receiver, by whom they were paid to the sheriff upon checks drawn by the supervisors of Auburn.</p> <p>Held, that as the board of supervisors had no statutory authority to impose these taxes upon the city their action was wholly without jurisdiction, and that the plaintiff could maintain this action to recover the amounts so paid without first procuring the assessment to be vacated in proceedings instituted directly for that purpose.</p> <p>Newman v. Supervisors of Livingston County (45 if. Y., 676) followed.</p> <p>That the case fell within the rule laid down by the Court of Appeals that where there is any essential defect in an assessment which does not require to establish it, proof outside of the proceedings themselves, it is a patent defect which will rob the assessment of all force even when questioned collaterally.</p> <p>Horn v. Town of New Lots (83 N. Y., 105).</p> <p>That evidence, showing that the money obtained from the plaintiffs assignors was received by the city treasurer of Auburn, and was by him paid over directly to the sheriff in payment of his fees due to him from the county on the order of the defendant, sufficiently established the receipt of the money by the county to entitle the plaintiff to maintain this action.</p> <p>That as the plaintiffs claim was founded upon the illegal and wrongful action of the board of supervisors, it was not necessary for him to present it to that board for audit before bringing this action.</p>

<p>Agreement of a husband to support a wife living apa/rt from, him — when not void m against ptiblie policy — when mutual, the husband cannot revoke it without the consent of the wife.</p> <p>In October, 1872, a husband, and wife, who had before that time separated and were then living apart, came to an agreement to live apart for the rest of their lives, the husband agreeing to provide for the support of the wife during her life, and she agreeing to release her dower in his lands and secure and indem.' nify him against any charge or debts for her support further or different than as then agreed upon. A written agreement was then entered into between the husband and wife, and a trustee, embodying this agreement and a mortgage was given by the husband upon lands belonging to him to the trustee as collateral security for the performance of the agreement. At the same time the wife joined in a deed conveying the lands of the husband, subject to the said mortgage, to a trustee, who was to hold the same in trust to convey as the husband might direct. The lands were subsequently conveyed to the husband subject to the said mortgage.</p> <p>The parties lived apart until after the death of the husband. There being a failure to make provision for the wife prior to his death, the trustee, who had made advances to her, brought this action to enforce the mortgage.</p> <p>Held, that the agreement, in so far as the provision sought to be enforced in this action was concerned, was not void as against public policy but was valid and enforceable.</p> <p>That the fact that the husband had prior to his death proposed to his wife that she should return to and live with and be supported by him, and that she had refused to accept this offer, did not revoke the agreement or prevent the trustee from enforcing it.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered on a verdict rendered at the Erie Circuit, and from an order denying a motion for new trial made on a case.</p>

<p>lácense to bore for ml — when it does not gvoe a title to the oil under the land, — what is essential to a title in petroleum oil — when an owner in possession of land need not formally re-enter to enfoi’ce a forfeiture of a license — when a conveyance of the lemd is sufficient evidence of his intention to enforce it.</p> <p>January 25, 1865, one Newton, who then owned a tract of land, and one West-brook made a written agreement, which was sealed, acknowledged and recorded, by which Newton granted and conveyed to Westbrook, his heirs, executors, administrators and assigns the exclusive right of entering in or upon any part of the said lands, and the right of erecting buildings, structures,engines and fixtures upon the same, and the right of way to and from the same for the purpose of searching for minerals, and to mine, bore or excavate for carbon or rock, or petroleum oil, or any other valuable volatile or mineral substance, and to gather and preserve the same, but not to have possession of the land for any other purpose, Newton to have the right to freely use and employ all land not actually necessary for mining purposes. Westbrook agreed to ♦ deliver to the party of the first part one-tenth of all oil or other valuable volatile or mineral substance pumped and gathered by them on the premises; to commence boring or excavating for oil or other valuable substances within one year, or as early as practicable thereafter as he might deem expedient, or forfeit all rights under and by virtue of the agreement.</p> <p>The plaintiff herein, who had succeeded to the rights of Westbrook, claimed that this agreement was in effect a deed of all the oil underlying the lands mentioned; that the oil was a corporeal hereditament, the title in fee to which passed to Westbrook, and that no forfeiture thereof could be worked by the act of the grantor, or by abandonment or non-user on the part of the grantee.</p> <p>Held, that the instrument amounted only to a license to Westbrook and his assignees to enter upon the land for the purposes of oil operations, and to obtain the oil as taken therefrom by their operations and during their occupancy.</p> <p>It seems, that there cannot be any property in rock or mineral oil, nor can the title thereto be divested or acquired, until it has been taken from the earth, (Per Smith, P. J.)</p> <p>It appeared in this case that Newton and his grantees had continued in the undisturbed possession of the premises, and that neither Westbrook nor his assignees had entered upon the premises, or exercised, or attempted to exercise, any of the rights secured to them by the agreement, except in 1881 to bring and put upon the premises a load of lumber which was removed therefrom by the defendant.</p> <p>Held, that it was not necessary for Newton or his grantees to re-enter or give any notice of an intention to enforce the forfeiture occasioned hy the neglect of the lessees to commence operations within the time limited. *</p> <p>Allegany Oil Company v. Bradford, Oil Company (86 N. Y., 688; affirming S. C.,. 21 Hun, 26), followed.</p> <p>That the execution hy Newton, after the expiration of the time limited, of a warranty deed conveying the lands to a stranger free from all reservations and containing no reference to the agreement, was a sufficient declaration of his. intention to enforce the forfeiture, if any overt act or notice was required.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury directed by the Erie County Court.</p>

<p>Certiorari — a return thereto is to he confined to matters specified in the writ — to what extent the papers used on the motion for a writ may he considered at the hearing —- alteration of highway — IRS., chap. 16, tit. 1. art. 4, as amended hy chap. 696 of 1881 — qualifications of town clerk and jurors —power of hoard of supervisors to-reduce the width of highways under chapter 483 of 1875.</p> <p>An officer to whom a writ of certiorari has been issued is only required to make-a return as to the matters specified in the writ.</p> <p>The hearing must be upon the writ and the return; the papers upon which the writ was granted can he considered only in determining the question as to the jurisdiction of the court to issue it, and possibly as establishing, as facts, such matters as were embraced in the writ and omitted from the return.</p> <p>The fact that the town clerk is a brother of one of the signers of a petition for the laying out of a highway does not disqualify him from drawing the names-of the jurors who are to certify to the necessity of the change, as required by article 4, title 1, chapter 16 of part 1 of the Devised Statutes, as amended hy chapter 696 of 1881.</p> <p>The validity of the proceedings is not affected by the fact that some of the jurors, whose names were so drawn by the clerk, and who served upon the jury, had signed the petition for the laying out of the road.</p> <p>It is not necessary to the exercise of the power “to authorize the laying out of highways of a less width than is now required, and of reducing the width of highways now in existence,” conferred upon boards of supervisors by chapter 483 of 1875, that any petition therefor should be presented to the board, or that any notice should be given of the proposed action of the board to parties interested therein.</p>

<p>Claim, against the city of Buffalo — when a presentation of it to the clerk of the common council thereof is treated as a presentation of it to that body — 1870, chap. 519, tit. 3, sec. 7.</p> <p>The presentation of a claim against the city of Buffalo to the clerk of the common council thereof, is a presentation of the claim to the common council within the meaning of section 7 of title 3 of the charter of the city, which provides that no action or proceeding to recover or enforce a claim against the city shall he brought until the expiration of forty days after the claim “ shall have been presented to the common council for audit.”</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom the action was tried. '</p>

The action was brought to foreclose a mortgage executed by James H. Jones and wife to the plaintiff, on the 23d of December, 1880. Held: that by the terms of the mortgage the same was a security for both the individual and copartnership indebtedness, and directed a decree accordingly. The assignee in whom the title was vested brings this appeal from this decree, insisting that the mortgage, as a security, was limited to the individual indebtedness of Jones.

The action was brought for a divorce, and the relief demanded in the complaint is, that a separation from bed and board forever may be adjudged, and that the defendant be compelled to make provision for the support and maintenance of the plaintiff; and that the plaintiff may have such other and further relief in the premises as shall be equitable and the circumstances of the case may require.

At the close of the evidence a verdict was directed against the defendant in tbe plaintiff’s favor for tbe sum of $1,417.53, to wbicb tbe defendant’s counsel excepted.

<p>Appeal from a judgment, entered upon tbe decision of the Erie ■County Special Term, dismissing the plaintiffs complaint.</p>

In 1877 tbe plaintiff was tbe owner of the schooner Almeda, engaged in navigating tbe lakes, between Buffalo and Chicago, and tbe defendant, in June of that year, placed a policy upon her in tbe sum of $3,500, tbe risks insured against being tbe perils of the lakes, tbe risk to expire on the thirtieth of November. Tbe value placed upon the vessel, tackle and other furniture, as stated in tbe policy, was $6,700.

He was sentenced to imprisonment in the Monroe County Penitentiary for the period of six months. The indictment contained five counts, in each of which a separate ind distinct offense was set forth as having been committed on dif ierent days, in taking money in different sums.

<p>Practice — a pa/rty entemng a judgment for damages and costs, after Ms costs Tia/oe been taxed,, camnot thereafter' move for a retmation.</p> <p>Where, upon a taxation of costs upon notice, an item of term fees is struck out by the clerk, and a judgment is thereafter entered by the moving party for his ■damages and the costs as so taxed, he cannot thereafter move to reopen the taxation and have the term fees-allowed to him.</p>

<p>Appeal from an order made at Special Term, denying a motion to set aside a judgment in favor of the plaintiff.</p>

<p>Appeal from an order made at the New York circuit, denying a motion to vacate a certificate that the defendant was entitled to ■costs, and from an order of the Special Term, denying the plaintiff’s motion to readjust the costs by striking out $127.50.</p>

<p>Surrogates Court — who may petition the eourt asa “ creditor ” for a decree directing his claim to he paid— Code of Civil Procedwe, secs. 2717 and 2718.</p> <p>The term “creditor,” as used in sections 2717 and 2718 of the Code of Civil Procedure, authorizing a petition to be presented by “a creditor” to the Surrogate’s Court, praying for a decree directing an executor or administrator to pay the petitioner’s claim, is confined to those persons to whom the deceased was indebted during his lifetime, and the remedy ¿hereby provided is not avail able to a person recovering a judgment for costs in an action brought by the-executors or administrators.</p> <p>Bulkley v. Btaats (4 Redf., 524) followed.</p>

<p>Appeal from an order of tbe Special Term, dismissing writs of habeas corpus and certiorari.</p>

<p>Practice — motions affecting receivers of insolvent corporations — what pap&rs must be served upon the attorney genwal under chapter 378 of 1883.</p> <p>Section 8 of chapter 378 of 1883, relating to receivers of corporations, provides that “a copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to he proposed thereon to the court, in every action or proceeding now pending for the dissolution of a corporation or a distribution of its assets, or which shall hereafter be commenced for such purpose, shall, in all cases, be served on the attorney general in the same manner as provided by law for the service of papers on attorneys who have appeared in actions, whether the applications but for this law would be ex pwrie or upon notice. ” * * *</p> <p>Held, that where a matter is to be brought before the court upon a regular notice of eight days, a notice of the motion, with a copy of the proposed order, must be served upon the attorney general That were it is to be brought before the court by an order to show cause, a copy of the order to show cause, and of the proposed order, should be served upon him.</p> <p>That it was not necessary to serve upon him a notice of the application for the order requiring cause to be shown.</p>

<p>Order for the examination of ajudgment debtor— Oode of0ml Procedure, see. 2436— the regularity of the issue of the execution must be shown— also a demand upon the debioi' and a refusal by him to a/pply the property.</p> <p>An affidavit used to obtain an order, as provided in section 2436 of the Code of Civil Procedure, requiring a judgment debtor to appear and be examined as to property alleged to be held by him which he unjustly refuses to apply towards the satisfaction of the judgment is defective if it fails to show that the execution was issued within the five years allowed by section 1375 of the said Code, or, if after the expiration of five years, that an execution had been issued within that time or that the present execution was issued pursuant to the order of the court granted under section 1377 of the said Code.</p> <p>Such affidavit is also defective if it fails to state that a demand for the application of the property to the payment of the judgment has been made upon, and refused by the judgment debtor.</p> <p>First National Banh v. Wilson (13 Hun, 232) followed.</p>

<p>Appeal from an order directing the trial of the issues in this action to take place before a referee appointed to hear and determine the same.</p>

<p>Action to restrain the enforcement of a city ordinance — when the invalidity of the ordinance must hme been first established in an action at law.</p> <p>This action was brought to restrain the enforcement against the plaintiff, a manufacturer of and dealer in safes, of an ordinance of the city of New Y ork forbidding any person from suffering or permitting “ any cask, bale, bundle, box, crate, or any other goods, wares or merchandise, or any boards, planks joists or other timber, or anything whatsoever, to be raised from any street, on the outside of any building, into any loft, store or room * * * by means of any rope, pully, tackle or windlass, under the penalty of twenty-five dollars to be recovered by an action of debt from such person,” etc.</p> <p>In the course of the plaintiff’s business it was necessary to raise safes on the outside of buildings in a manner which, it was claimed, was prohibited by the ordinance. The plaintiff sought to restrain the enforcement of the ordinance upon the ground that the common council had no power to pass it.</p> <p>Held, that as it did not appear that the invalidity of the ordinance had been established in any action brought against the plaintiff, or that numerous actions to enforce the same against it were then pending, the action could not be maintained.</p> <p>Semble, that the ordinance did not apply to plaintiff’s business.</p>

<p>Execution against the person of a defendant — what recitals it mist contain — Code of Civil Procedure, secs. 1365, 1372, 1489.</p> <p>An execution against the person of the defendant recited that it was issued upon a judgment recovered in the Supreme court, in the city and county of New York, for fraud and the conversion and fraudulent disposition of property. It stated that the judgment had been docketed in the office of the clerk of the county of ' New York, and that an execution had been issued thereon to the sheriff of the county of Kings, where the defendant resided, which had been returned unsatisfied.</p> <p>Held, that these recitals were sufficient to sustain a direction for the sheriff to arrest the defendant.</p> <p>That it was not necessary that it should be stated in the execution that the judgment had been docketed in the office of the clerk of the county of Kings.</p> <p>Nor was it necessary that an execution against the property of the defendant should have been previously issued to the sheriff of the county of New York Me v. Ohristie (15 Abb. [N. S.], 346); People exrel. Brack v. Beilly (58How., 318),. distinguished.</p>

Appeal by James M. Jackson from an order denying a motion made in his behalf, to discharge him from his obligations as purr chaser of real estate sold under the judgment in this action.

<p>Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order denying a mótion for a tiew trial.</p>

The contract further provided that no part of the principal should become due under six years, even though the plaintiff died before. The defendant had the right of immediate possession. The plaintiff is a widow, upwards of eighty years of age, without relatives nearer than nephews and nieces. Defendant is one of several nephews. Besides this farm, the plaintiff had between $3,000 and $6,000 of property. The defendant has paid less than $100 on the contract.

Evidence was given at the trial tending to establish the charge made in the indictment. Defendant gave evidence to the contrary, as a witness in his own behalf.

Tbe action was brought to recover sundry penalties for alleged violations of section 15 of chapter 11 of tbe ordinances of tbe said city of Oswego, which were passed on August 7, 1877.

Joseph Parish was indicted in the Court of Oyer and Terminer of Onondaga county charged with grand larceny in the first degree, alleged to have been committed in the city of Syracuse on the 29th of December, 1882. The indictment of Parish was remitted to the Court of Sessions of that county, and after plea of not guilty, a trial was had in that court on the 26th and 27th days of December, 1883, and Parish was convicted.

90. The action was brought to recover for the value of plaintiff’s team, loaned to defendant to work for the city of Elmira, which was alleged to have been killed while so at work through the negligence of defendant and his servants. There was a question of fact at the trial in regard to the alleged negligence. Upon the trial the defendant was a witness in his own behalf and gave evidence upon the principal issues in the action.

<p>Appeal from parts of an order made by the Oswego Special Term, denying a motion to vacate a judgment.</p> <p>A petition was presented to the surrogate of Oswego for leave to issue an execution upon a judgment after the death of the judgment debtor. Leave having been granted an appeal was taken from the decree of the surrogate to the General Term, where his decision was affirmed in October, 1884, with costs. The costs were taxed and the decision of the General Term was filed. Thereafter a judgment was entered and docketed with the clerk of Oswego county affirming the surrogate’s decree, fixing the costs, and authorizing their collection.</p>

Appeals from orders made in the above entitled actions, denying motions to vacate attachments issued against the property of the defendants Green and Pond. Yirgil and Green were equal copartners in business from January, 1881, until October 4, 1884, when Byron Pond purchased the interest of Yirgil, and a new firm under the name of Green & Pond was formed, which continued in business for about ten days.

The action was brought against both defendants, who were husband and wife, to recover the amount due upon a promissory note, of which the following is a copy: “ $2,000. Albany, April the 1st, 1876. “ One year after date we, or either of us, promise to pay Elizabeth Eairlie or bearer two thousand dollars, with interest, for value received. «P. BLOOMINGDALE. “ E. M. BLOOMINGDALE.” The defendant Peter Bloomingdale made default; the defendant Frances defended.

<p>Will— when a gift of the ‘remainder is valid, although the tenant for life has power to dispose of the principal.</p> <p>A testator gave to Us wife all Ms “ property, both real and personal, for her to use, occupy and possess, sell or dispose of, in any way that she may deem proper for her own use and benefit; * * * and it is my will that all the property that Esther, my wife, shall possess at the time of her death, both real and personal, shall be disposed of in the following manner: Let one-half be given to her heirs, or to whom she may see fit to bequeath it. Let the other half be divided between ” relatives of the testator named in the will. Esther had separate property of her own.</p> <p>Held, that the wife was at liberty to enjoy the income and use the principal, if she desired to do so, but that if she did not use all the principal, then whatever remained at the time of her death should go as provided in the will.</p> <p>Wager v. Wager (96 3ST. Y., 164) followed.</p> <p>Qiuea’e, as to whether the legatees in remainder, or the executors or administra tors of the husband, should bring the action to recover the residue of the principal.</p>

Motion by the defendant corporation to vacate an injunction.

<p>Costs — on appeal from a judgment of a Justice’s Court— Code of Civil Procedure, ■sec. 8070 — to what cases it applies.</p> <p>The plaintiff, having been defeated in an action brought by him in a Justice s Court to recover damages for the killing of his dog, appealed to the County Court and demanded a new trial, and upon such new trial he recovered a verdict of three dollars.</p> <p>Eeld, that he was entitled to recover costs. (Bocees, J., dissenting.)</p> <p>Quirk v. Wixon (£7 Hun, 593), and Snyder v. Hughes (Id., 874), followed.</p> <p>Section 8070 of the Code of Civil Procedure, regulating the right to recover costs on appeals from judgments of Justice's Courts, does not apply to cases such as this where a party who has been wholly defeated in a Justice's Court succeeds in the County Court.</p>

The action was brought to have the defendant ousted from the office of town clerk and to have the relator declared elected thereto. The complainant alleges that the defendant was elected to the office of town clerk of the town of Hillsdale at the annual town meeting March 3, 1885, but that he was not eligible to said office by reason of not being an elector of said town, not having been an inhabitant of said town for one year next preceding said election.

Tbe motion was made upon tbe grounds, among others, tbat tbe mortgaged premises were not sold in separate parcels, and tbat an appeal was pending at tbe time it was beld, by wbicb tbe proceedings in said action were stayed. Final judgment was entered in tbe action April 7, 1885. The premises were advertised for sale on the 27th day of May, 1885.

<p>Tax sale — when the desoription of the premises is too mgm.</p> <p>In a deed executed by tbe comptroller to a purchaser of lauds at a sale for nonpayment of taxes, tbe premises were described as “in tbe county of Sullivan, Minisink patent, division one (1), lot twenty-eight (28), four hundred and fifty-five (455) acres, more or less, bounded north and south by the lot lines east try resident land, and west by the town of Eorestburgh.”</p> <p>Held, that the description was defective in that the east boundary was too vaguely defined.</p>

<p>Marine insurance —power of an agent to make an oral agreement to issue a policy — ■ when the customa/ry mode of loading a cargo ca/n he proved — what is a waimm' of a right to object to a failme to serve proof of loss.</p> <p>The defendant, a marine insurance company, issued to Preston & Co. its open policy, dated March 1,1884, and also a commission authorizing them to receive proposals for insurance and to issue certificate therefor to attach under the said open policy. On Saturday, March 29, 1884, between five and six p. m. , the plaintiff’s bookkeeper, acting under the plaintiff’s instruction, telephoned to Preston and asked him to put an insurance of $1,500 on a cargo of blue stone on the sloop Carver. Preston said he would and asked where the sloop was going. The bookkeeper replied New York, and also stated that the sloop was then at Rondout, and was told by Preston that it was all right and that they would take it. Preston made a minute of the instructions on the telephone card and told his partner to “put it on the Thames and Mersey” (the defendant). That night the partner made a memorandum in lead pencil on the stub of the book of certificates, in which, after the loss, however, the words “on deck or on board” were written. The sloop left Rondout that night in a tow and was lost in a storm the next morning.</p> <p>Jn this action, brought to recover the amount of the insurance:</p> <p>Held, that Preston & Co. had power to make an oral agreement to issue a policy, and that the agreement made by them with the plaintiff was binding upon the defendant.</p> <p>That the fact that the rate of the premium was not fixed did not affect the validity of the agreement, as it was shown that the plaintiff and the agente liad dealt together for some years and knew the rate of the premium, and that the agents were in the habit of giving credit to the plaintiff for the premium upon the policies issued to him.</p> <p>Evidence was received, against the objection and exception of the defendant, tending to show that the plaintiff was accustomed to load on deck; that this was the customary mode of loading, and that the defendant’s agents knew this to be so.</p> <p>Held, that as the evidence was not intended to explain or modify any terms actually written in a policy, but only to show what must have been the understanding of the plaintiff and the agents when the verbal agreement was made, it was admissible.</p> <p>A witness called by the defendant was asked whether, in his judgment, the vessel and cargo could have been saved by cutting her loose from the tow.</p> <p>Held, that the court properly refused to allow the witness to answer, as the question was objectionable in form.</p> <p>It was claimed by the defendant that the plaintiff’s failure to furnish proofs of loss, as required by the terms of the defendant’s policy, should prevent a recovery by him.</p> <p>Held, that the necessity of furnishing them was waived by a letter from the defendant’s general agent admitting the receipt of proofs of loss and denying all liability upon other grounds.</p> <p>Brink v. Hanover Mre Insurance Company (80 N. Y., 108); O’ Mel v. Buffalo Insurance Company (3 id., 122), followed; Devens v. Mechanics and Traders’ Insurance Company (83 id., 169) distinguished.</p>

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

22. Tbis action was brought to recover tbe balance of deposits made by plaintiff with defendant, a savings bank organized under chapter 371, Laws of 1875, at various times between January 16, 1880, and May, 1883. Tbe plaintiff lost her pass-book in tbe autumn of 1883.

<p>Statute of limitations — when it begins to run — a provision in a will for a debtor is not an acknowledgment of a debt.</p> <p>In or about tbe year 1860 the defendants’ testator, being indebted to the plaintiff for work performed by the latter during the years 1857, 1858, 1859 and 1860, entered into an oral agreement with him whereby the plaintiff agreed to postpone the time for the payment of the amount then due until the death of the testator, who agreed to pay him the said amount by a provision to be inserted in his will. In 1862 the testator made a will containing a provision for the plaintiff. Thereafter he revoked this will by making another which contained no provision for the plaintiff. The testator died in 1881.</p> <p>In this action, brought by the plaintiff against the executors of the deceased to recover the amount so due to him:</p> <p>Held, that the action was barred by the statute of limitations, which began to run at the time of the making of the agreement in 1860.</p> <p>That the provision made in the first will was not such a written acknowledgment of a promise to pay the debt as to take it out of the statute.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.</p>

The action was brought to recover damages sustained by the plaintiff because of an injury to his eye, caused by the alleged negligence of the defendant. The defendant denied that it was operating the railway at the time of the injury.

, Appeal from two orders made by the Special Term, óne denying •defendant’s motion to cancel the judgment entered against him, I and the other granting the plaintiff leave to issue execution thereon. ! •September 5, 1867, the defendant Perry filed his petition in bankruptcy in the United States District Court, this action then being pending. . He obtained his discharge in bankruptcy April 28, 1868, from all debts existing against him as of the date of filing the petition.

issues, and from a decree of the surrogate of the county of Bensselaer, admitting the will of James Dennin to probate. The will of James Dennin was presented to the surrogate of Bensselaer county, and by him admitted to probate. Upon appeal the General Term of the Supreme Court reversed the decree of the surrogate and sent the case to the Bensselaer Circuit to be tried upon certain issues framed by the court touching the testamentary capacity of the said Dennin.

<p>Application to cancel a tax sale made by the comptroller — construction of statutes requiring the fling of the original assessment-roll and of a copy thereof — a defect in the copy filed in the town cleric’s office will not invalidate the sale.</p> <p>Upon an application to the comptroller for the cancellation of a sale of non. resident land for the non-payment of taxes assessed against it in 1870, it was shown by the applicant that the original tax roll for that year was lost; that a paper on file in the town clerk’s office, which purported to be a copy of the corrected assessment-roll of the town for that year, did not have upon or annexed to it the oath of the assessors, nor was there any “fifth column” as required by the statute, nor was the amount of the tax set down in dollars and cents. The affidavits of the collector and the certificate of the county treasurer, filed in the office of the comptroller as required by law, were sufficient in form and substance to authorize the comptroller to make the sale.</p> <p>Held, that the defects in the copy filed in the town clerk’s office did not establish. the existence of those defects in the original roll.</p> <p>That the fact that the copy filed in the office of the town clerk for the use of the town, as required by section 35 of 1 Revised Statutes, 396, was not a correct copy of the original roll, did not invalidate the sale.</p> <p>That the action of the comptroller in refusing to cancel the sale should be affirmed.</p>

The action was brought by the attorney general in behalf of the people, under the provisions of section 3 of chapter 542 of 1880, as amended by chapter 361 of 1881, to recover from the defendant corporation the taxes upon its franchise and business for the years ending November 1, 1881 and 1882, respectively.

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a'jury, and from an order denying a motion for a. new trial made upon tbe minutes of tbe justice before whom the-action was tried.</p>

62 in favor of the plaintiff, «entered upon the verdict of a jury at the Rensselaer Circuit in May, 1885, and from an order denying the appellant’s motion to set aside the 'verdict and for a new trial, made upon the minutes of the justice before whom the action was tried.

The complaint charges that the defendant holds the legal title to certain premises under a trust to convey the equal undivided one-half thereof to the plaintiff in this action, and the other like one half to Eliza Bull, the defendant’s wife; that the defendant, though often requested so to do, refuses to make a conveyance of his interest in the premises to the plaintiff; that the defendant also has been in the use and enjoyment of said premises and is entitled to certain…

<p>Amendment to complaint — must be without prejudice to proceedings already had— Oode of Oml Procedure, see. 542.</p> <p>In the summons and complaint in this action Albany county was designated as the place of trial. Neither party resided in that county. The defendant, which had its principal place of business in King’s county, demanded that the place of trial be changed to Kings county. The plaintiff, who resided in Rensselaer county, thereupon amended his complaint by designating Rensselaer county as the place of trial. Dp on the defendant’s motion coming on it was defeated upon the ground that the proper county was designated in the amended complaint.</p> <p>Held, that this was error as the complaint could only be amended, without prejudice to the proceedings already had. (Learned, P. J., dissenting.)</p>

The James Goold Company brought an action against the defendants to set aside a transfer of personal property made by the defendant William F. Maheady to his wife, the defendant Fannie L. Maheady, on the ground that the same was made with intent to hinder, delay or defraud creditors.

The defendant had twenty-nine bales of hops, at Burke upon the Ogdensburgh and Lake Champlain railroad. The plaintiffs were hop buyers and by their agent Primrose, had been negotiating with defendant for the purchase of the hops. Primrose had seen the hops and inspected them; they had not been weighed.

Appeal by the plaintiff from a judgment dismissing the complaint upon the merits, entered pursuant to an order granting the ■defendant’s motion made at the close of the testimony upon a trial had before Mr. Justice Ingalls and a jury at the Rensselaer county Circuit, in May, 1884 The action was brought to recover damages for injuries sustained by the plaintiff through the alleged negligence of the defendant in permitting an alleged street, in the city [of Troy, called…

<p>Policy of insurance — when the company is not bound by the os'al representations of its agents — Tontine system of insurance — sights of a policyholder prior to the period fixed for distribution — such a policy is not void as a gaming contract— the company is not required to s&parrate Tontine funds from generad funds.</p> <p>This action was brought by the plaintiff to recover damages alleged to have been sustained by her by means of false representations made by the defendant, and for a breach of a contract made by it, whereby it insured the life of the plaintiff’s husband for her benefit.' The complaint alleged that the plaintiff had been induced to take out a policy of insurance on the life of her husband on the tontine plan, by means of the representations and statement made to her husband acting as her agent, by the defendant, which representations and statement were false and fraudulent. Upon the trial it appeared that the application was made to the husband of the plaintiff by an agent of the company, who produced a pamphlet issued by the company and read portions thereof to the husband, and also allowed the latter to read it himself.</p> <p>The counsel for the plaintiff read from this pamphlet a description of the tontine plan, and an explanation of its peculiarities and advantages substantially as they were set out in the complaint. He then asked the husband, who was a witness, “ what further representations did he (the agent) make to you at the time in regard to the advantages of this tontine investment plan as compared with other plans of insurance.” Upon the defendant’s objecting the witness was not allowed to answer this question. The court also refused to allow the witness to testify that he was induced to accept the policy by representations, other than those contained in the printed pamphlet, made to him as to the advantages of the tontine plan over the others.</p> <p>Held, that the evidence was properly rejected for the reasons:</p> <p>First. That the policy expressly provided that no representations made by the person procuring the application therefor should be binding on the company, unless the statement was reduced to writing and presented to the officers of the company at the home office.</p> <p>Second. That as the pamphlet which contained a full and true description of the tontine plan of insurance was read by the agent of thelplaintiffi, and there was-no concealment or misrepresentation on that subject, any statements made by the agent as to the advantages of that plan over others suggested, amounted simply to recommendations and expressions of his own opinion, and could not be deemed to have deceived or misled the plaintiff or her husband.</p> <p>Tim'd. That the representations related only to future and not to past acts.</p> <p>By the terms of the policy the life of the husband was insured for $5,000, and provisions were made for the division of the tontine fund among the holders of policies in force at the period fixed for distribution. The policy was issued on February 15,1875, and the tontine dividend period was to be completed on February 11, 1885. The premiums falling due on the policy were paid down to February 11, 1880, when the policy lapsed by reason of the non-payment of subsequently accruing premiums. In this action, commenced in 1882, while the husband was yet alive, the complaint alleged that the defendant did not perform the obligations assumed by the policy, which were specified in the complaint, and that by reason of its failure so to do, the plaintiff had sustained damages.</p> <p>Held, that the action was prematurely brought as the plaintiff had no interest in the fund until the tontine period had expired, as it could not before that time be ascertained whether or not her husband would then be alive or the policy be in force.</p> <p>That the plaintiff had forfeited all her rights under the policy by a failure to pay the annual' premiums.</p> <p>That the defendant was not required to keep the funds arising from the policy, or the class of policies to which it belonged, separate and apart from the other funds of the company, or to separately invest them for the benefit of the persons whe might eventually be entitled to receive them.</p> <p>That the contract could not be held to be void as in effect a gambling contract. That even if it were a gambling contract the plaintiff could derive no benefit from that fact, as her action was not based upon the law'against gaming, and she was in pari delicto if the contract were immoral and void.</p>

<p>Letting of town lands — powers of electors at annual town meetings — effect of restrictions upon the power of leasing and sale.</p> <p>On April 4,1871, a resolution was adopted by the electors of the town of Graves-end, at the annual town meeting, providing that the common lands of the town should thereafter be let only at public auction, to the highest bidder, after notice given as therein prescribed, and that “ if any lot be so let to any person other than the last lessee owning improvements on said lot, the new lessee shall pay the former lessee for the value of improvements on the property at the expiration of the old lease (provided such improvements were on the property at the time of such public letting), at a rate to be fixed by arbitration between the old and new lessee.” December 20, 1872, the town leased certain lots described as lots Nos. 51 to 56 inclusive, and Coney Island Point to the plaintiff Furey for ten years, by a lease which contained no covenants or reservations in favor of the lessee, and no provision as to improvements. In 1879 the commissioners attempted to extend the term of the lease, but their action was illegal, and after the expiration of the term of the original lease, an action of ejectment was brought by the 'town, in which it recovered a judgment for possession in February, 1884.</p> <p>Chapter 458 of 1883 vested the control of the common lands of the town in tho supervisor and five trustees, and provided that they should have no power to sell or give title to any lands of the town, or to release or discharge any title or claim of the town thereto, excepting the lots Nos. 51 to 56 inclusive, and Coney Island Point, but that they might receive propositions in writing for the purchase or release of the title or claim of the town and consider the same, and if they should deem it for the interest of the town to accept the offer they were empowered to call a town meeting and execute a conveyance if authorized by a vote of a majority of the electors. The act further provided: that the said supervisor and trustees should have power to sell the lots Nos. 51 to 56 inclusive and Coney Island Point “ to the present lessees in possession of the same, provided such sale should be ratified and confirmed by resolution duly passed at an annual town meeting, or at a special meeting to be called for the purpose.”</p> <p>This action was brought in March, 1885, by the plaintiffs, the persons interested in the lease to Furey, who alleged that the trustees had received a proposition from another person forjthe lands leased to them, which they deemed it best to accept, and had called a town meeting to consider it, and prayed that they might be restrained from holding the meeting or selling or conveying the lands:</p> <p>Reid, that the act, chapter 458, of 1883, did not prohibit the sale of lots Nos. 51 to 56 and Coney Island Point to a person other than “ the present lessees in possession of the same.”</p> <p>That, assuming that the provision of the resolution of April 4,1871, requiring an incoming tenant to purchase the improvements of an out going tenant at a price to be fixed by arbitration should be treated as incorporated into the lease given to Furey, the obligation imposed upon the town was, if any, not an absolute one, but only that if the lot should be leased to any person other than the last lessee owning improvements then the new lessee should pay the former lessee the value of the improvements.</p> <p>That if it could be claimed that the requirement of the resolution was sufficiently comprehensive to include a purchase as well as a lease, then no claim could be made unless the premises had been sold to a person other than the plaintiff.</p> <p>That as the contingency upon which alone the liability could attach had not occurred, an action based upon such liability would at this time be prematurely brought.</p>

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

Anthony’s Church, is the equitable owner, and which fund the plaintiff, who is a judgment-creditor of the church, with an execution returned unsatisfied, seeks to reach in this action, in satisfaction of the judgment'debt. This fund consists of collections taken up during service at St. Anthony’s Church, and was placed in the bank in his own name by the defendant O’Hare who is the pastor and one of the trustees of the church.

<p>Appeal to General Term from an order dated April 4, 1885, made at Special Term at White Plains, before Mr. Justice Dykman, on an application of the relators, directing a mandamus to issue, directing the trustees of the village to insert in their next annual tax-list and warrant the sum of $1,033.68, and interest, awarded to the relators by commissioners as damages for alteration of grade of Howard street in said village, and the further sum of seventy-seven dollars and ten cents, costs and interest.</p>

Tbe action was in ejectment to recover a portion of certain premises wbicb were conveyed to tbe defendant by a deed containing tbe following description of them: All tbat certain lot, piece or parcel of land situated, lying and being in tbe city of Brooklyn, in the county of Kings and State of New York, bounded and described as follows, to wit: Beginning at a point on tbe northerly side of Macon street, distant 536 feet westerly from tbe corner formed by tbe intersection of…

<p>Appeal from an order vacating an injunction restraining the defendant from removing tbe gold and stock reporting instruments from tbe rooms of the plaintiff.</p>

<p>Appeal from,part of an order or final decree of the surrogate of "Westchester county, directing tbe salé of certain lands belonging to tbe estate of Jobn Pi Jenkins, deceased, for tbe payment of debt, but further fixing tbe amount due to tbe appellant at $145, and directing that in case that amount was deposited further proceedings should be stayed on payment of tbe expense of tbe proceedings, such latter portion of tbe decree being tbe portion appealed from.</p>

The plaintiff brought his action against the defendant to recover for damages growing out of the sale of cod oil, which he claims was not pure or as represented, and alleged that by reason thereof the entire stock of buckskins, in the tanning of which said oil was used, was lost by him, and became worthless and of no value whatever.

The complaint alleges in substance that the defendants Dyett and Norton were stock brokers, doing business under the firm name of A. Dyett & Co. That the defendant William H. Randel is the administrator of the estate of one Jonah B. Randel, who died on the 17th of March» 1879, intestate, leaving as his only heirs-at-law seven children, among-them the plaintiff and the defendant, TV illiam H. Randel.

Appeal by the defendants Thomas P. O’Connor, as executor of John McEvoy, deceased, and John McOloskey, archbishop, etc., from so much only of the judgment as orders a deficiency judgment against them in a suit to foreclose a mortgage.

The plaintiff sued for damages alleged to have been caused by defendants’ negligence. Plaintiff was a wood sawyer in the defendants’ employ, and was injured while tending a steam saw. The saw was, in the ordinary course of its use, “ set ” or sharpened every day or two by defendants’ foreman. This was part of the ordinary management of the shop.

<p>Inability of a party, discontinuing an action, for the costs and expenses incurred — right of a person, rendering services under the employment of a referee, to maintain an action against the plaintiff discontinuing the action for the value of the services so rendered — statute of limitations — when it begins to run.</p> <p>In an action brought by the present defendant, to procure the partition or sale of certain lands, a judgment for the sale of the property was entered, which directed the referee appointed to execute the judgment to employ a surveyor to lay the land out in lots, as he should deem for the best interests of all the parties, and to pay from the proceeds of the sale for the services so rendered. After the present plaintiff had, pursuant to the employment of the referee, made the requisite survey and map, the action was, upon the application of the plaintiff in the partition suit, the present defendant, discontinued, upon the condition that the plaintiff therein should pay all costs and expenses.</p> <p>In this action, brought by the surveyor against the present defendant, to recover the value of the services rendered by such surveyor:</p> <p>Held, that the defendant was liable to him therefor.</p> <p>That the plaintiff’s recovery was not limited to the statutory fees, but should be fixed by the jury in accordance with the value of the services rendered.</p> <p>That the statute of limitations did not commence to run against the plaintiff’» claim until the entry of the order of discontinuance.</p>

Appeal by tbe plaintiff from an order made at Special Term, denying a motion to make the answer more definite and certain. The action was brought to recover the sum of $10,000 damages for breach of promise to marry.

The action was brought against the Germania Life Insurance Company of New York to recover $1,000, the amount of an endowment policy issued by the defendant upon the life of one Joseph Goldsmidt, for the benefit of his wife Barbara Goldsmidt. The policy by its terms became due and payable May 31, 1885.

The action was brought to recover damages for injuries sustained by the plaintiff by reason of her child being injured by one of the defendant’s trains.

Burns, two of the defendants herein, to be frivolous. The action was for partition, and it appears upon the face of the complaint that the plaintiff Elizabeth Foster, who is the wife of the plaintiff Egbert Foster, has an inchoate right of dower in that portion of the premises whereof her husband is seized in fee; it also appears that the said plaintiff Elizabeth Foster is neither a joint tenant nor a tenant in common of the premises in question.

The action was brought upon a bill drawn by the defendants to the order of the plaintiffs, which had been delivered by the former to one Meyer, who on the same day delivered the same to the plaintiffs. It was claimed by the plaintiffs that they had purchased the bill for value. This was denied by the defendants.

Tbe action was brought to recover damages for articles published by the defendant in The New York Tribune, which were alleged to be libelous. The article set forth in the first cause of action was as follows: “ Chappaqua. “ On Thursday Dr. Patch was called to visit a little son of Constable Alexander Lawrence, for whom he prescribed some medicines. Shortly after taking a dose, the child was seized with convulsions.

The action was.brought to recover damages for injuries sustained by a son of the plaintiff in being run over by a truck owned by the defendant and driven by one of his servants.

Justice Cullen, after tbe trial of issues arising upon tbe return to an alternative writ of mandamus. Tbe writ commanded tbe respondent to audit and pay relator’s claim for $14,398.31, or show cause wby tbe writ ought not to be obeyed.

W. Woods, counselor a-t law of Salt Lake City, Utah, to take the depositions of the plaintiff’s witnesses residing in that city, and appointing said Woods commissioner. The proceeding on which this appeal is taken is a reference under the statute of a disputed claim against the estate of the decedent, to Judge Weight, of JPutnam county, by consent and with the approval of the surrogate.

The demurrer was interposed by tbe defendant Hughes to the complaint in this action upon the ground: (1.) That several causes of action have been improperly united. (2.) That the complaint does not state facts sufficient to constitute a cause of action against the defendant Hughes. The complaint alleged that the plaintiff was a beneficiary under the will of one Josephine O. 13. Webster, and that the defendants McGuire and Webster are testamentary trustees under said will.

<p>Appeal from an order made at a Special Term, affirming an order appointing commissioners to ascertain and appraise tbe compensation to be made to the appellants for real estate belonging to tbem, which was to be taken by the petitioner for the purpose of constructing and operating its railroad.</p>

<p>Surrender of coupons upon the receipt of a worthless check — when the owner still retains his title to them — a mandamus should not issue when an ample legad remedy exists.</p> <p>The relator was the owner of certain coupon bonds issued by the county of Westchester, which were by their terms made payable at a bank in New York city. Subsequently the place of payment was lawfully changed to the private banking-house of J. M. Masterton & Co., at Mount Vernon. On November sixth coupons then due were presented to Masterton & Co. for payment, and were delivered to them, upon the receipt of their check for the amount thereof. The check was worthless, there being no funds in the bank upon which it was drawn to meet it. The county had sufficient money on deposit with Master-ton & Co. on the day the coupons were presented to pay them.</p> <p>Held, that the delivery of the worthless check did not discharge the obligation of the county, and that the coupons surrendered by the owner upon the receipt of the check remained his property and might be recovered by him in an action at law against the county to which they had been delivered by Masterton & Co.</p> <p>Semble, that as he had an ample and complete remedy at law, it was not a proper case in which to issue a mandamus requiring the county treasurer to pay the amount of the coupons to him.</p>

The court at General Term said: “ There is much confusion and contradiction in the papers contained in the appeal book, but in the view we take of the case we shall not be required to examine the facts. “ It appears that in March, 1884, a petition was signed by the taxpayers of Brookhaven, intended to request the commissioners of highways of that town to ascertain and record an old road which it was claimed existed therein.

<p>Right of a stockholder to bring an action against a corporation cmd its officers mis-' appropriating its funds — right of the corporation to appeal from a judgment against the plaintiff — contract by the agent of a corporationi— when he cannot appropriate benefits intended for the corporation.</p> <p>This action was brought by the plaintiff, as a stockholder of the Sheridan Electric Light Company, to recover, on behalf of the corporation, moneys which had been received by the defendants Kendrick and Shepard, as its agents, and had been misappropriated by them, with the aid, assistance and concurrence of the other individual defendants, who were officers of the corporation. The corporation was made a party defendant. It did not serve an answer, but upon the trial of the action, when it had passed into the hands of other officers, it appeared and presented objections and took exceptions similar to those presented and taken by the plaintiff, and joined with him in moving for a new trial.</p> <p>Meld, that the company had a right, under section 1294 of the Code of Civil Procedure, to appeal from a judgment against the plaintiff, as a party injured and aggrieved thereby.</p> <p>Innes v. Purcell (58 N. Y., 388); Valentine v. Myers, etc. (36 Hun, 201), distinguished.</p> <p>Kendrick and Shepard were authorized by a letter, addressed to them by the president of the company, to go to Ohio and there form an electric light corporation, to which was to be delegated the right to organize subordinate companies in that State which were to use the patents owned by the New York corporation. The letter provided that “ each company must also purchase, before the licenses are granted, from this company, treasury stock to the amount of five per cent of the capital of such company. That is to say, should the capital stock of a company be $100,000, then such company must purchase and pay cash at par value, $5,000 treasury stock of the Sheridan Electric Light Company of New York, and in the same proportion, be the capital more or less; provided, however, that no single company shall be obliged to purchase more than ten thousand dollars worth of the aforementioned stock.”</p> <p>Acting under this authority, a corporation was organized by these agents in Ohio, with a capital of $1,000,000, divided into 10,000 shares of $100 each. By the agreement made by the agents, 3,500 fully paid up shares of the new company’s stock was to be transferred to the New York corporation, and the sum of ten dollars upon each share of $100 of the residue of the stock was to be paid to such New York corporation in cash for the right to use and sell the' electric light lamps and dynamos under its patents. Pursuant to this agreement, the subscribers thereto paid to the agents, for the New York company, the sum of $65,000, of which the agents paid to the New York company the sum of $10,000, and retained the residue thereof under a claim that they were-entitled so to do under the letter sent to them by the president.</p> <p>Held, that the claim could not be sustained.</p>

<p>Motion by tbe defendants for a new trial upon exceptions ordered to be beard in tbe first instance at tbe General Term.</p>

<p>Judgment creditor’s action — when the debtor may attach the judgment as obtained through fraud.</p> <p>This action was brought by the plaintiff, as a judgment creditor of the defendant, Mary Ann Trimble, to set aside as fraudulent the conveyance of certain real estate made by her to the other defendants in the action. The judgments were recovered by the plaintiff, upon coupons attached to bonds issued by the defendant, Mary Ann Trimble, in 1869, payment of which was secured by a mortgage upon the Trimble Opera House, in the city of Albany. Both of the judgments were recovered by default; one December 16, 1880, for coupons falling due in November, 1870, and November, 1871, and the other on January 22, 1881, for coupons' falling due on November 1, 1874. In November, 1869, the defendant Trimble leased the opera house to one Barnes 'for eleven years, and agreed to sell and convey the property to him. In 1872 Barnes assigned the lease and contract to the husband of the plaintiff. Both Barnes and the plaintiff’s husband agreed to pay all the bonds and coupons. In 1872 the defendant Trimble conveyed the opera house to one Leland.</p> <p>The defendant Trimble claimed that she was induced by the persuasions and fraud of Kichardson, the plaintiff’s husband, to permit the judgments above mentioned and other similar judgments to be recovered against her so as to enable the plaintiff to proceed against the opera house property by the foreclosure of the mortgage; that the defendant, who was in feeble health, and of advanced age, did not then know and remember that the said coupons had been, prior to that time fully paid, and that she had been fully released and discharged from all claims and demands by Richardson. It appeared that, in an action brought, to foreclose the mortgage, it had been found as a fact that the said coupons had been in fact fully paid and discharged, and they •were conceded to have been so paid by the plaintiff’s attorney upon the trial of this action.</p> <p>Meld, that it was proper for the court to admit the evidence of these facts, and upon the establishment of the truth of the defense set up in the answer, to vacate the judgments and direct a judgment to be entered in favor of the defendants herein.</p>

<p>Appeal from a judgment of tbe Court of General Sessions of the county of New York, convicting the defendant of the crime of larceny in the second degree, and from an order denying a motion made for a new trial.</p>

<p>Bight of the public to make searches and copy maps, ete., in the register’s office of New York city — chap. 410 of 1882, secs. 1742,1747,1751 —1882, chap. 392, as amended by chap. 367 o/1883, and, chap. 167 of 1884 — power of the register to regulate the conduct of persons making searches — to require them to be made under the observation of a custodian — to exclude them for insolence.</p> <p>Sections 1747 and 1751 of chapter 410 of 1882 make it the duty of the register of the city and county of New York to permit all persons to have free access to the hooks, records and indices of the office for search at all reasonable times during the day time, and to exhibit the same to persons wishing to make such searches.</p> <p>Under the authority “to make and cause to be made, and to purchase and to pay for, all such searches, abstracts, indices, maps and copies of records, as the trustees thereof may deem necessary,” conferred by section 2 of chapter 367 of 1883, upon The Title Guarantee and Trust Company, the relator herein, such company is entitled to examine, by persons in its employment, the books, records, maps and papers of the register’s office, and to make searches, abstracts and copies of the records, so far as that may be considered necessary to place itself in a position to examine and afCord the means of examining title without afterwards resorting to the register’s office.</p> <p>In case the register should refuse to allow such examination to be made, a mandamus would be granted compelling him to permit it to be done.</p> <p>The register has, however, the power to exercise a reasonable discretion in the care, management and government of his office, and the preservation of the books and records.contained therein, and, so far as that discretionary power extends, the register is entitled to exercise it according to his best judgment to secure the good order of his office and the preservation of the books and papers committed to his custody. To that extent his powers and duties are not subject to be interfered with or controlled by a writ of mandamus.</p> <p>Section 1742 of chapter 410 of 1882 authorizes the register to assign one or more suitable persons in his office to have the custody of the records during office hours, in whose presence, under the direction of the register, all examinations of the records shall be made.</p> <p>Meld, that the fact that the register permitted persons, other than those employed by the relator, to examine the records without being subject to the observation or surveillance of his custodian, did not prevent him from compelling the persons employed by the relator to make their examination under such observation.</p> <p>That the question as to whether or not additional custodians should be appointed was in a great measure confided to the judgment and discretion of the register, which when fairly exercised should not be controlled or overruled by the court.</p> <p>The fact that the persons employed to make searches, extracts and copies are insolent to the register justifies him in excluding them from the office.</p> <p>The proper form of writ to issue in such a case stated.</p>

<p>Appeals by botb parties from appraisals and reports of commissioners.</p> <p>On December 28, 1877, the General Term made an order under the provisions of tbe Revised Statutes (part 1, chap. 18, tit. 15, § 14, et seq. [6th ed.], vol. 2, p. 523), on the petition of the railway company, appointing Messrs. William Orton, John H. Sherwood and Edward Mitchell, commissioners “ for the purpose of ascertaining and appraising the compensation to be made to * * * Amos F. Eno and Amos R. Eno, as owners of the real estate so proposed to be taken for the purposes of the said Gilbert Elevated Railway Oompany, which said real estate is situated in said city and county of New York and is described,” etc. Mr. Orton having died, by order dated May 14, 1878, Mr. John H. Clark was appointed in his place. The pieces of property in question were described in the petition as parcels Nos. 3, 4, 5, 6 and 8, belonging to Amos R. Eno, and No. 7 belonging to Amos F. Eno. All were described as being situated within the bed of South Fifth avenue.</p> <p>By order dated January 8, 1879, the description of parcels Nos. 4 and 5 was amended. Upon the trial before the commissioners an amendment was made as to the other parcels. As thus amended the parcels consist of strips on each side of the center line of South Fifth avenue, between the center line and a line seven feet from the side. The avenue is seventy-five feet wide.</p> <p>The commissioners made reports as to all the parcels. They bear date April and May, 1879. All the commissioners joined in the report as to parcel No. 5 and as to a part of parcel No. 3. In the other cases Messrs. Mitchell and Sherwood made a majority and Mr. Clark a minority report.</p> <p>Parcel No. 3 is sixty-one feet five inches long. It is in front of Nos. 223, 225 and 227 South Fifth avenue, between Canal and Grand streets, on the east side. The compensation awarded was $7,141 —$526.50 being awarded to unknown owners, and the residue, $6,614.50, to Amos R. Eno. Mr. Ciarle united in tbe report so far as concerned tbe award of $526.50 to unknown owners, and $2,725, part of tbe $6,614.50, awarded to Mr. Eno.</p> <p>Parcel No. 4 is fifty feet seven inches long. It is in front of Nos. 160 and 162 South Eifth avenue, on the west side, between Broome and Spring streets. The award was $4,562.50. It was made to “ Amos R. Eno, as owner, or to persons interested,” etc.</p> <p>Parcel No. 5 is seventy-five feet long. It is in front of Nos. 119, 121 and 123 South Eifth avenue, between Spring and Prince streets, on the east side. The award was $8,500. All the commissioners joined in the report.</p> <p>Parcel No. 6 is fifty feet long. It is in front of Nos. 132 and 134 South Eifth avenue, on the west side, between Spring and Prince streets. The award was $4,562.50.</p> <p>Parcel No. 7 is forty-eight feet one inch long. It is in front of Nos. 124 and 126 South Eifth avenue, between Spring and Prince streets, on the west side. The award was $5,062.50.</p> <p>Parcel No. 8 is twenty-five feet long. It is in front of No. 58 South Eifth avenue, between Houston and Bleecker streets, on the west side. The award was $2,531.25.</p> <p>The order confirming the report of the commissioners directed that the $526.50, awarded to unknown owners for a part of parcel No. 3, be deposited in the Shoe and Leather Bank. It made the same direction as to the $4,562.50, awarded to Amos R. Eno, as owner, or to persons interested, for the limited estate, in parcel No. 4. It directed that the residue of the awards be paid to the Messrs. Eno.</p> <p>No. 58 South Eifth avenue, in front of which parcel No. 8 is situated, is an unimproved lot without buildings upon it. The value of a lot on South Eifth avenue in the absence of the railroad was, without contradiction, proved to be about $22,000 to $25,000.</p> <p>The property in front of which the other parcels are situated consisted of lots and buildings, the buildings representing an additional value for each twenty-five feet of front of about $30,000 to $40,000.</p> <p>South Eifth avenue embraces what was formerly Laurens street, widened from fifty feet to seventy-five feet by taking twenty-five feet on the westerly side under proceedings under the act of 1813. Laurens street was laid out through what was known as Bayard’s"West Farm, by Nicholas and Stephen Bayard. They caused a map pf the farm to be made, laying it out into streets- and lots; the lots were described by numbers. The lots were conveyed by the map numbers, and were described as “ bounded by the streets.”</p> <p>The reports of the commissioners were before the decision of the Court of Appeals in the Story case.</p> <p>The opinion of the majority of the commissioners was that the Messrs. Eno were entitled to compensation for so much of the strips as lay in the bed of what was Laurens street, and that as abutting owners they were also entitled to compensation for deprivation of light, air and access.</p> <p>Mr. Clark coincided with the majority of the commissioners that an award should be made for the strips which were taken from the Messrs. Eno. It was his opinion, however, that they had no interest as abutting owners, and that as the strip on the westerly side of the avenue was separated from the abutting property by the widened twenty-five feet of the avenue, it was of no value.</p> <p>South Fifth avenue was widened in 1810. It was at an expense to-the property on the west side, of about $1,500 for each twenty-five feet lot in addition to the loss of the strips taken; and at an expense to the property on the east side of the avenue of about $3,000 for each lot.</p> <p>The company appeals generally. It contended before the commissioners that the Messrs. Eno had no other right in the avenue than the naked fee title to such parts of the parcels as lay in the bed of old Laurens street, and that as such title was subject to a perpetual easement in the public to use the avenue as a street, its only value was the value of the reversion. The Messrs. Eno contended that, as abutting owners, they were entitled to light, air and access (as has been said, this was before the Story decision); but that, whether that were so orno, the ownership of the plots, subject only to the street uses, secured to them immunity from the railroad, and if that were to be taken from them an award was to be made accordingly. The Messrs. Eno appeal, first, for the insufficiency of the awards, on the proposition that no allowance was made for improvements; and, secondly, that the awards directed to-be deposited in tbe Shoe and Leather Bank should have been awarded to them. The majority of the commissioners delivered the following opinion:</p> <p>Opinion of Commissioners :</p> <p>For the purpose of valuing the parcels under consideration on South Fifth avenue, its road-bed may be divided into three longitudinal sections, viz., the easterly, central and westerly sections, each twenty-five feet wide. The easterly and central sections together, constitute what formerly was the road-bed of Laurens street. The westerly section was taken by the city under the act of 1813, on the widening of Laurens street in 1870. It is conceded that a former owner of the lands laid out and dedicated Laurens street as a public road, and it is not claimed that any compensation has ever been paid by the public either for the fee or for the easement to use the land for a public road.</p> <p>la. The claimants whose lots abut on the easterly section, and whose deeds bound them “by Laurens street,” and not “along the easterly line ” of Laurens street, therefore, have an estate in fee in that section subject only to the easement of the public to use the same as a public road.</p> <p>i>. The claimants whose lots abut on the westerly side of South Fifth avenue, and whose deeds bound them “ by Laurens street,” and not “ along the westerly line of Laurens street,” have an estate in fee in the central section, subject only to the easement of the public to use the same as a public road.</p> <p>No question is made as to the kind of ownership or estates in the easterly and central sections, where the deeds do not confine the ownership to the line or side of the street. The only question as to those sections is one of value in such cases. The railway company insists that the easement of the public will be so perpetual in its use that the naked fee In the owner is of only nominal value; that the “ taking,” by the railway company, of the estate in the land to which it is entitled by law is only a nominal taking, and that the legislature having declared the railway use to be a public use, the respondents are deprived of nothing except in name.</p> <p>The claimants insist that the taking is a new burden different from the present easement, and that the residue of their lands will be depreciated in value by tbe taking, and that substantial damages should be awarded to protect them from loss by reason of the taking. The legislature has no power to authorize a steam railroad to take .a public highway or turnpike road for the construction of a steam railroad, without making compensation to the owner of the fee of the lands in the highway or turnpike, or without his consent. (Trustees of the Presbyterian Society in Waterloo v. Auburn and Rochester Railroad Company, 3 Hill., 569, quoted with approval in Williams v. New York Central Railroad Company, 16 N. Y., 105.)</p> <p>Selden, J., in delivering the opinion of the court in this last •ease, says (p. 109): “ But it is unnecessary to refine upon this case. Any one can see that to convert a common highway, running over •a man’s land, into a railroad, is to impose an additional burden upon the land and greatly to impair its value. As no compensation has, in this case, been made to the owner, his consent must in some way be shown. The argument is that, as he has consented to the laying out of a highway upon his land, ergo, he has consented to the building of a railroad upon it; although one of these benefits his land, renders access to it easy, and enhances its price, while the -other makes access to it both difficult and dangerous, and renders it comparatively valueless. Were the transactions between two individuals every one would see at once the injustice of the conclusion attempted to be drawn. It is the public interest supposed to be involved which begets the difficulty, and it is just for this reason that the Constitution interferes for the protection of individual rights, and provides that private property shall not be taken for public use without compensation, a provision no less necessary than just, and one which it is the duty of the courts to see honestly and fairly enforced.</p> <p>“ The case stated by the learned justice, who delivered a dissenting •opinion in the Supreme Court, is a striking illustration of the injustice that would frequently be done under the rule contended for by the defendants. A street was laid out through a man’s land, and he was assessed several hundred dollars for benefits in addition .to the land taken; and before the street was opened it was taken by a railroad company and converted into the track of their road. The owner lost his land, had to pay several hundred dollars, and had the annoyance of the railroad besides, while the railroad company got the road for nothing.</p> <p>“ The case of Inhabitants of Springfield v. Connecticut River Railroad Compamy (4 Cush., 63) shows what the Supreme Court of Massachusetts thought of the argument that the uses are the same. It was insisted there, on the part of the defendants, that the-power conferred upon them by the legislature, to build their road between certain termini, gave them by necessary implication the right to build their track upon any intervening highway. But Chief Justice Shaw, in reply to this argument, says: “ The two uses are almost, if not wholly, inconsistent with each other, so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated. The whole course of legislation, on the subject of railroads, is opposed to such a construction.”</p> <p>“ I concur with the learned chief justice, and have no hesitation in coming to the conclusion that the dedication of land to the use-of the public as a highway is not a dedication of it to the use of a railroad company; that the two uses are essentially different, and that, consequently, a railway cannot be built upon a highway without compensation to the owners of the fee. The legislative provisions on the subject were probably intended, as was intimated in The Presbyterian Society of Waterloo v. Auburn and Rochester Railroad Company (supra), to confer the right, so far only as the public easement is concerned, leaving the companies to deal with the private.rights of individuals in the ordinary mode. If, however, more was intended, the provisions are clearly in conflict with the Constitution, and cannot be sustained.”</p> <p>In the case of Mahon v. The New Work Central Railroad Company (24 N. Y., 658), the following facts appear: The Utica and Schenectady Railroad Company, to whose rights and liabilities the defendants succeeded, had, in 1836, in pursuance of an act of the legislature requiring it to do so, purchased all the rights of the Mohawk Turnpike Company, which was incorporated April 4,1800. The plaintiff brought this action for damages against the defendant for depriving him of the use of the highway, and for the construction and operation of the railroad upon the land extending to the middle of the highway, without purchasing the land or causing plaintiff’s damages to be assessed. Clerke, J., in the opinion of the court, at page 660, says:</p> <p>“ The rule that owners of land bounded on public highways, prima fade, own the land to the center of the highway, is not alone applicable to ordinary highways, but also to turnpikes (Hooker v. The Utica and Minden Turnpike Co., 12 Wend., 371); and although the general act relating to turnpike companies, passed March 13, 1807, declares when the president and directors pay the •owners of the lands the sums assessed and awarded by the appraisers in their inquisition, they shall have and hold to them and their successors and assigns forever, the lands and tenements described in their inquisition; yet it has been always held that this and the special act of incorporation vests in the company the title to the lands over which the road passes only for the purposes of the road, and when the road is abandoned, the land reverts to the original owners. The company only acquired such an estate in the. land taken by it as was necessary to fulfill the end and intent of the cor poration, and could hold it to no other use, intent or purpose. Having ceased to occupy the land for the purpose of a turnpike road, the Mohawk Turnpike Company, in transferring it, in effect abandoned it; and although they were authorized by the legislature to transfer to the Utica and Schenectady Railroad Company, this could not, constitutionally, deprive the original owners of the land of their right of reversion” without compensation. (Davis v. Mayor, etc., of New York, 14 N. Y., 526; Williams v. N. Y. Central R. R. Co., 16 id., 97.)</p> <p>“ An easement for the purpose of a highway does not authorize, as against the proprietor of the soil, the laying down of a railroad upon the track of the highway. The use of the land for a railroad is totally different from that public right of passage for which highways were designed.”</p> <p>The case of Wager v. Troy Union Railroad Company (25 N. Y., 526) reiterates the doctrine decided in the cases above alluded to. This was an action of trespass by an owner of lands, in the city of Troy, against the defendant, for constructing a railroad in the street in front of his lands without his consent and without compensation to him, although with the assent of the city corporation. It was held that the action could be maintained and that there was no distinction in this respect between the street of a city and a highway in the county. (Quoting Bissell v. N. Y. Central R. R. Co., 23 N. Y., 61.) All the above cases are approved, and the principle contained therein is extended, so as to be made applicable to horse railroads, in Craig v. Rochester City and Brighton Railroad Company (39 N. Y., 404). This case was one in which the owner of a lot in the city of Rochester, on East avenue, extending to the. center of the street, obtained a perpetual injunction to restrain the defendant from laying a horse railroad track in the public street in front of his lot, without his consent, and without taking legal proceedings to acquire it. The Court of Appeals sustained the injunction. Five out of the six judges who sat in the Court of Appeals in the Mahon case (supra), agreed that the appropriation of the land of a turnpike company, which was an appropriation in fee, did not authorize its use for a railroad. (See 24 N. Y., page 661.) The only conclusion to be drawn from these cases is that the claimants, whose deeds carry them to the middle of old Laurens street, are to be compensated as for a fresh taking of the lands in the easterly and central sections of South Fifth avenue.</p> <p>II. It remains to consider what title was left in the claimants, as original owners, whose lots abut on the westerly section, after the taking by the city from them of the fee of that section, under the act of 1813, in the proceedings for the widening of Laurens street. This question, as applicable to this case, is open and new. In the Matter of Gilbert Elevated Railway Company (70 N. Y., 361, at page 375), Church, O. J., in delivering the opinion of the court, that the rapid transit acts provided for compensation for any property rights the abutting owners may hare in the streets, and that the act was constitutional, says:</p> <p>“ The amount or extent of the damages are questions not properly before the court. * * * To determine what particular occupation of the streets is to be deemed a legitimate public use, involves important and delicate questions. They were very much debated in this court in the surface railroad cases and the principles adjudicated in those cases will be regarded as obligatory upon the court in deciding future cases. Whether the structure contemplated to be built and operated will be an invasion of the property of abutting owners in any of the streets, entitling them to some remedy for damages, or whether it will be regarded as a legitimate use of the streets for the benefit of the public, the inconvenience and annoyance of which private abutting ownership is subject to, cannot, with propriety, be adjudicated upon these appeals.”</p> <p>The act of 1813, under which the city took title to the westerly section, is that the corporation of the city shall be seized in fee of the lands, and may take possession of the same. In trust, nevertheless, that the same be appropriated and kept open for or as part of a public street in like manner as the other public streets in said city are and of right ought to be. (2 R. L., 1813, p. 414, chap. 86, § 178.)</p> <p>The commissioners are of opinion that when the city took the fee to the westerly section of South Fifth avenue, in trust, to keep the same open as a public street, there was left in the original owner an estate or interest exactly the same in quality that the Court of Appeals decided that he retained after the turnpike company took the fee in the bed of its road.</p> <p>The fee taken by the turnpike company was not, in terms, qualified or restricted, or limited or conditioned, in any way whatever. The act was “ that the said president and directors aforesaid, upon paying the said several owners of the said lands the several sums so-assessed, * * * gfiall and may have and hold to them and their successors and assigns forever the lands * * * described.” (Laws 1807, chap. 38 [ed. of Barber], p. 108.) The city takes the fee in terms, but only for one specified purpose, viz., in trust to keep the-land open as a public street. The fee is not an absolute, unqualified unconditional fee. The city cannot sell or convey it, or incumber it in any way or consent that it shall be incumbered. It cannot build upon it, or permit others to do so. The land could not be sold for the debts of the city, for its estate is only a trust estate. The-act provides what the city can do with the fee, and that is to keep it open as a public street, and that is all the city can do with it and is all the right the public has taken away from the original owner. The-whole duty, power and trust of the city, in the fee, is to keep it. open, the fee being taken because the city can thereby better perform its duty and its trust in that regard than if any other quality of estate were taken.</p> <p>The petitioners rely upon the* case of The People v. Kerr (27 N. Y., 188), as an authority to show that abutting property owners have no right or estates in the streets left in them after the city has-acquired title to tlie land in the street under the act of 1813. That was an action by owners of lots on Seventh avenue and Broadway to restrain a horse railroad company from laying tracks in the street in front of the lot owners. It was found, as a fact (p. 210), that all the lands in the street had been taken and paid for by the city under the act of 1813. The complaint was dismissed, and the Court of Appeals affirmed the judgment. The following extract is quoted by the petitioners to sustain their views (Wright, J., pp.210, 211):</p> <p>“It is found, as a fact, and conceded, that under this act of 1813 all the lands in the several streets on which the plaintiffs areabutting landowners, were either taken for streets, under section 178 of that act, after compulsory appraisal, or ceded by the lot owners upon an agreed valuation pursuant to such section. * * * After sudh relinquishment and vesting of the fee in the city corporation, no property, estate or interest in the land included in the streets opened under the act, remained in the adjacent proprietors.”</p> <p>“ Reporter’s Note.— Davis, J., did not sit in the case; all the other judges concurred substantially upon the grounds stated by Wright, J.” (P. 215.)</p> <p>We may here note that the learned judge, who wrote the opinion above quoted from, cited as the only authority for the doctrine enunciated the ease of Heyward v. The Mayor of New York (3 Seld., 314). In that case the city had taken lands of Mrs. Ann Rogers for an alms-house in the Ninth ward, under an act of the legislature (Laws 1818, chap. 244), in the same manner, etc., as by the Laws of 1816, chapter 53, the city was authorized to take lands for a public market.</p> <p>The act of 1816 thus referred to, and made part of the act of 1818, provided that the city, on payment, should become and be seized in fee simple absolute of the lands taken. The city having abandoned the use of these lands for alms-house purposes, sold them. The representatives of Mrs. Rogers brought this suit on the ground that the public use having ceased, the lands reverted to the original owners. The court held otherwise, on the ground that the fee was an absolute fee. In short, under both of these acts, the city took the land as proprietors and not in its political capacity. Such a case cannot be an authority for the dictwm in People v. Kerr, above quoted. Moreover, the whole of the reporter’s note in the People v. Kerr is as follows: “ Davies, J., did not sit in the case. All the other judges concurred, substantially, upon the grounds stated by Weight, J., without passing upon the distinction between the extent of the public right in city streets and country roads, and other questions discussed by Emott, J.</p> <p>“ Rosekeans, J., was of the opinion that the power of the legislature extended only to governing the mode of passing upon the surface streets, and that, subject to this, the city of. New York had all the rights of the original proprietor of the soil, and might be entitled to compensation for any privation thereof.</p> <p>“ Baloolm and Marvin, JJ., suggested that, independent of the public right in streets, whether acquired by dedication or confiscation, and of any naked fee which might remain in the original owner, with the possible ultimate right of reverter, there might be a private right in the owners adjoining the streets to have free • access to their premises held under the original proprietor of the tract embracing the street, of which such owner could not be deprived by the assent or surrender of the public, or of the general owner of the fee of the street, or both, without compensation for his individual interest in the street or easement. This, they said, to preclude the conclusion, if such were possible, that any such an interest could be supposed to have been disregarded. They saw no such question in this case, and were, therefore, for affirmance.</p> <p>“ Judgment affirmed.”</p> <p>Judge Emott further, in his opinion (p. 207), says that the use of a street by a steam railroad and a horse railroad is manifestly very different, and (on page 208) “I do not consider that the grant or the exercise of such a privilege (constructing a horse railroad) involves taking or imposing a new burden.”</p> <p>The commissioners, therefore, cannot consider the Kerr case as controlling the questions before them.</p> <p>Whether the city, as trustee, may be treated as a contractor with those of the public who have paid the assessments to enable it to acquire this fee in trust, and who have been specially damaged by a breach of the trust on which it is held, and the imposition of this new burden; or how far the city might insist that the rapid transit acts impair its obligation under such a contract may be interesting questions, but this commission has nothing to do with them.</p> <p>The commissioners are of the opinion that after the taking by the city there then remained in the abutting original owners a naked fee with the ultimate right of reverter in the westerly section of South Fifth avenue, and that this fee is of the same quality as the absolute fee which they have in the central section subject to the public easement, and of the same quality as the absolute fee of those of the claimants of the east side in the easterly section, and that its value is the same less the amount which the owners would have to pay to the city for vault purposes. It is only the present estate in fee of the claimants which is different. They have no present estate in fee in the westerly section; only one in expectancy. They have a present estate in fee in the easterly and central sections, and also one in expectancy.</p> <p>To illustrate: The claimants could not now dig vaults under the westerly section except by license from the city. They could now dig vaults under the central and easterly sections as in their own right, so long as they did not thereby interfere with the public easement and did not render the highway any less secure. Besides these estates in fee the claimants have as easements in the land in the street the right of light, air and access to their lots, which was guaranteed to them when the fee was. taken only in trust to keep it open as a street. Every lot owner bought with that statute before him. Every contract and deed for lots in this city is made relying on it. The taking contemplated is a new burden, and the right which the petitioners desire to acquire depreciates the value of the residue of the lands of the claimants and take from them their present rights of light and freedom of access.</p> <p>III. There is yet one other and different tenure of property by the claimants. That is where their deeds bound them “ along or by the side or line of the street,” and not “ by the street.” In accordance with an unbroken current of decisions, the lot owners in such cases have no title to the land in the street. Their title to land stops with the side of the street.-</p> <p>The point is here made by the petitioners that abutting lot owners having no title to the land in the street no land is taken from them; their land not being taken, they are not damaged, and no compensation is to be awarded. It is undoubtedly true that they have no title to the land itself in the street. The following quotations from the law on the subject have been made by the petitioners:</p> <p>“ In case any company formed under this act is unable to agree * * * it shall have the right to acquire title. * * * (R. S., vol. 2 [6th ed.], p. 523.) For the purpose of acquiring such title * * * may present a petition. * * * It must contain description of the real estate which the company seeks to acquire * * * that the land. * * * is required for the purpose of constructing or operating the proposed road. (Secs. 14, 15.) The commissioners shall * * * ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them. (Sec. 18, p. 525.) On such report being made, etc., the court shall thereupon * * * make an order, * * * containing a description of the real estate appraised, for which compensation is to be made. (Sec. 19, p. 526.) And thereupon, and on the payment * * * of the sums to be paid as compensation for the land * * the company shall be entitled to enter upon,” * * * etc. (Sec. 20, p. 526.) If there are adverse and conflicting claimants-to the money, or any part of it, to be paid as compensation for the real estate taken.” (Sec. 21, p. 526.)</p> <p>The provisions of this act must be construed, however, m conjunction with the clause of the Constitution under which it was framed, namely: “ Nor shall private property be taken for public use without just compensation.”</p> <p>Has not every lot owner a special private right of property in the light, air and access afforded him by an open street ? We think he has, without reference to whether he has a title to the land in the street or not.</p> <p>If he has not, and the arguments of the petitioner’s learned counsel be correct, the legislature may, without compensation to the lot owner, empower the petitioners to build solid masonry walls within six inches of the lot owner’s front, and two, three or more stories in height, so long as the only use made of the structure is to carry the public. Or, it may empower some other private corporation to build some similar structure, from side to side of the street, for a market or some other purpose, by simply declaring it to be for the public use.</p> <p>We find, as matter of fact, that the light, air and access of the claimants’ lots are interfered with and taken, to an appreciable extent, by the petitioner’s acquisition of the lands in question, and, as matter of law, that these are private property rights, and, as easements, appurtenant to the lots fronting on the street, or otherwise, belonging to the abutting property owners, whether the lot owners have or have not title to the land itself in the street.</p> <p>Unless the general railroad act, under which the petitioners are to acquire title, be so construed that it shall include all private property rights in the term lands, the taking is in violation of the Constitution, and the act would fail, in that respect, to conform to the constitutional requirements.</p> <p>IY. This brings us to the question of damages. The estate in the land to be acquired by these proceedings is governed by section 5, chapter 885, Laws of 1872, paragraph 12 of petition, except that by the order of this court, of January 8, 1879, the estate, in parcels four and five, was limited to the right to use said parcels to construct, maintain and operate a railway constructed on the modified plan prescribed by the rapid transit commissioners. As to parcels other than four and five, the estate taken therein is such as may be necessary “ to make such structjires as shall secure stability and firmness to the elevated road ” (Act of 1872, § 4), and for “ stations, * * * platforms,” etc. (Sec. 3.) This, in case the present sub-structure should prove insufficient, would justify the petitioners in building on the land taken such substantial foundations or depots as might be necessary, and would be a very different burden from the limit fixed on four and five in the order, by consent of the parties.</p> <p>On this question of damages, almost all of the cases hold that the commissioners are not to consider any consequential or prospective damages, or damages which may result from the use to which the land is to be put. Almost all of them lay down the rule that the commissioners are to estimate, first, the fair market value of the whole parcel, and then the fair market value of the property not taken, and that the difference is the true amount of compensation to be awarded.</p> <p>The case of the Canandaigua and Niagara Falls Railroad Company v. Payne (16 Barb., 273), was one in which the commissioners had taken evidence as to consequential injury which a mill might sustain. The mill was not the parcel of the land taken by the railroad, but was separated from it by a highway. Harris, J\, at pages 275, 276, lays down the rules above alluded to and sets-aside the award.</p> <p>In the case of the Albany Railroad v. Lansing (16 Barb.) it appears, at page 69, that the commissioners adopted the rule to allow full compensation for the land taken, including therein the-damages to the adjacent land, by reason of such taking, but that they should not allow consequential and prospective damages. At page 70, Harris, J., says: “ The legislative intent is, I think, very successfully embodied in the rule adopted by the commissioners. * * * The were to consider how the taking of the land, but not the use of it in any particular mode, would affect the residue of the owner’s land.” At page 72 the court holds there is no error in this principle.</p> <p>In Albany and Susquehanna Railroad Company v. Dayton (10 Abb. [N. S.], 185) the court held the measure oi compensation to be: (1) The fair value of the land; and (2) a just compensation for the effect which the taking would have in depreciating the market value of what is left.</p> <p>In Matter of Union Village, etc., Railroad Company (53 Barb., 458), the court says: “ These decisions (above) have been too long acquiesced in as sound expositions of the law upon this question to be disturbed without substantial reasons therefor.” This case was one in which the commissioners refused to take into consideration increased danger from sparks to a ffax mill on lands of owner. Held, correct.</p> <p>In the Matter of the Prospect Park and Coney Island Railroad Company (13 Hun, 345), the following appears (p. 346): The railroad company desired to acquire an easement in a highway for railroad purposes, but not to extinguish the fee. The street was owned in fee by twenty-two different persons, subject to the perpetual easement of the public therein as a highway. The award of the commissioners was one dollar in each case, except three-cases. In one of these three, three dollars, and in the other two six cents were awarded. The land owners appealed. (P. 348.) The court set aside the report. (P. 347.) Gilbert, J., says : “ The taking of the land in the highway, for the use of the railroad, is a. fresh taking of the property of'the landowner, for which he is entitled to just compensation,” not to merely nominal damages.</p> <p>The next case quoted by petitioners is : In the Matter of One Hundred and Tenth Street (54 How. Pr., 313), where the Central Park Commissioners closed a portion of the Ploomingdale road, but retained that portion of it required for One Hundred and Tenth street as laid out, and assessed the compensation for the fee of that portion retained in One Hundred and Tenth street at a nominal sum. At page 315 it appears that this rule was prescribed by the legislature. (Laws of 1867, chap. 697.) The court affirmed the award.</p> <p>This case is in no respect parallel to the one under consideration. If the city were proceeding to take the fee under the act of 1813, in the easterly and central section of South Fifth avenue, the case might be an authority, although even in such a proceeding the value of the right to dig vaults would have to be allowed.</p> <p>The case of Bellinger v. New York Central Railroad Company (23 N. Y., 47, 48) is the next one referred to by petitioners. That was an action for damages from a freshet, alleged to have occurred by reason of the construction of a bridge by the defendant over low lands. The defendant sought to prove that the embankment and bridge were carefully and skillfully constructed, which evidence was excluded. Held, error, for which a new trial was granted.</p> <p>The last case on the petitioners’ brief is that of Patten v. New York Elevated Railroad Company (3 Abb. N. C., 343). The only point decided in that case was that Patten did not own any part of the street in front of his hotel, the deed to him bounding his lot “ on the westerly side of Greenwich street,” and that he did not own the vault or any right in it which the public author ities could not take away, his right being a mere license and therefore revocable; and that, therefore, he was not entitled to any compensation for the invasion of his vault by the railroad company.</p> <p>We now proceed to examine the cases referred to by the claimants on the question of damages. The following have been already considered, viz.: The Albany, etc., Railroad Company v. Lansing (16 Barb., 68); Matter of Union Village, etc., Railroad Company (53 Barb., 457); Canandaigua and Niagara Falls Railroad Company v. Payne (16 Barb., 273).</p> <p>The Matter of Poughkeepsie and Eastern Railroad Company (63 Barb., 151) is as follows : Palmer was the owner of an iron ore bed and a railroad, four or five miles long, from his mine to the Harlem railroad. The Poughkeepsie and Eastern railroad commenced proceedings to' condemn two and a-half miles of Palmer’s railroad at the end nearest the Harlem railroad. The commissioner awarded damages for those two and one-half miles as follows: (1) Value of land taken, including grading done; and (2) of the iron and ties laid down. They did not award anything for depreciation in value of what was left at the other end of Palmer’s four miles of railroad, or for depreciation in value of the mine, by cutting off Palmer’s facilities for transportation. Held, that commissioners should have allowed for such depreciation, and new commissioners were appointed and directed accordingly.</p> <p>In the case of the Troy and Boston Railroad Company v. Lee (13 Barb., 169), the court sent the 'proceedings back to enable the commissioners to review their decision as to the amount of damages. * * * If the report is the result of the free exercise of the judgment of the majority of the commissioners who signed the report, in reference to the market value of the property as it was before the railroad was constructed, and as it will be afterwards, it ought not to be disturbed. * * * The opinions of witnesses as to values are to be received as persuasive evidence, and never controlling. , The rule laid down in all the foregoing cases would seem to be uniform. The two next cases, it has been supposed, depart from this uniformity. In the Matter of the Utica, etc., Railroad Company (56 Barb., 456) it appears, at page 458, that the commissioners had awarded $100 for the value of the piece taken and the depreciation of the remainder of the property by the taking of that piece, but that nothing was allowed for the depreciation of the remainder, occasioned by the increased risk of fire from locomotives; nor for depreciation in its market value, occasioned by the use of the piece taken for a railroad; nor from the annoyance, noise, smoke, discomfort and inconvenience of having a railroad located and operated there. At page 466 it was held the report should be set aside and a new appraisal made, in which is to be included all the damages which the appellant will sustain to his premises by the construction and use of the railroad, and in duding compensation for the piece of the lot taken by the road. At page 464, increased risk from fire, and increased difficulty of access and inconvenience to the remainder, by reason of the railroad, and depreciation from noise, smoke, etc., are all directed to be included.</p> <p>The only remaining case, which is the latest to which we have been referred, is that of Matter of New York Central and Hudson River Railroad Company (7 Weekly Dig., 171; also reported Supreme Court Rep., N. V., 15 Iiun, 63). This was an appeal from the report of commissioners.</p> <p>One Judge, the appellant, was the owner of a lot on which a grocery and dwelling was erected on Broadway, in the city of Albany. The railroad company had for many years had two tracks on Broadway, in front of Judge’s lot. In 1874 the railroad company laid two additional tracks. All the land in question had been previously taken by the public for a street, and at each of the times when petitioner’s tracks were laid thereon was being used for that purpose.</p> <p>The commissioners rejected the following evidence offered by Judge: That one hundred and twenty trains passed over the new tracks up between 5 a. m. and 9 p. m., and a proportionate number between 9 p. m. and 5 a.m.; that the cars are heavily loaded and cause great and injurious jar to the walls of such building. That since the laying of the new track his building has been seriously injured by jarring caused by trains, so that the walls and partitions were shaken down and the stairway had to be rebuilt, and that repairs to the extent of one thousand dollars per year were made necessary; that the portion of his lot not taken was depreciated in value by the noise, smoke and increased danger caused by the trains on this new track.</p> <p>The court, after citing a great many cases, holds that this evidence should have been received. On page 68, the rule laid down (20 N. Y. S. O. R. [13 Hun], 345) in the opinion of Gilbert, J., is quoted with ■approval, namely: “ The true inquiry is, what was the whole property, from which the railroad was severed, fairly worth in the market before the taking, and what was its value with the railroad npon the land taken ? ”</p> <p>It will be observed that these two last cases relate to city property taken by a railroad; that the principles of law recognized in the opinion are the same as stated in the other cases, and that it is only in the application of these principles that they possibly appear to differ. The commissioners, in making their award, have considered what the property was fairly worth before the taking by the railroad, and what the property left, after the taking, was fairly worth, and have awarded the difference as compensation for the taking.</p> <p>The properties to be appraised are of the following kinds :</p> <p>On the Easterly Side.</p> <p>I. A fee in the abutting lot owner in the easterly twenty-five feet of South Fifth avenue, subject only to the easement of the public therein as a street. As an incident of this fee, the right to have no new burden cast upon the land without his consent or compensation. Apart from the fee and this incident a special, private-property right that the air, light and access afforded by an open public street shall not be taken without his consent or compensation. The lot owner in this case has the right to dig vaults - without the payment to the city for a license. Compensation in this case is to be made to the lot owner for the fee and for the air, light and access.</p> <p>II. No title whatever in the land in the abutting lot owner. The fee, in this case, being in some prior unknown lot owner, who conveyed the lot bounding it by the easterly “ line ” or “ side ” of Laurens street, to whom compensation is to be made for his title, which is subject to the public easement for street purposes. The. lot owner, in this case, having only a special private property right that the air, light and access afforded by an open public street shall not be taken without his consent or compensation. The lot owner, in this case, could not dig a vault against the will of the owner of the fee, even with a license from the city. The compensation to the lot owner, in this case, is for air, light and access. The compensation for the fee is to the unknown owner.</p> <p>On the Westerly Side.</p> <p>The several lot owners on this side of the South Fifth avenue have the same kind of properties in the central twenty-five feet of the avenue, as above stated at I and II, in regard to the easterly twenty-five feet.</p> <p>III. A fee in the abutting lot owner in the westerly twenty-five feet, subject only to the fee in the city, in trust to keep the land open as a street. As an incident of this fee of the lot owner is the right to have no new burden cast upon the land without his consent or compensation. Apart from the fee and this incident, a special private property right, that the air, light and access afforded by an • open public street, shall not be taken without his consent or compensation. The lot owner here has to be compensated, for his fee and the air, light and access.</p> <p>IV. No title whatever in the land in the abutting lot owner. The fee, subject to the title acquired by the city in 1870, being in some unknown owner, who, since 1870, has conveyed his lot, bounding it by the westerly “line” or “side” of South Fifth avenue. The abutting lot owner in this case, having only a special private property right that the air, light and access afforded by an open public street, shall not be taken without his consent or compensation. The only compensation in this ease, if for the air, light and access, to be made to the abutting owner. Any compensation for the fee remaining in the former unknown owner, subject to the city’s title, is to be made to him.</p> <p>New York, Ma/rch 31.</p> <p>JOHN ‘H. SHERWOOD</p> <p>EDWARD MITOHELL.</p>

<p>Manufacturing corporation — liability of its stockholders under section 10 of chapter 40 of 1848.</p> <p>Section 10, chapter 40 of 1848 provides that “ all the stockholders of every company, incorporated under this act, shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have been made and recorded, as prescribed in the following section; and the capital stock so fixed and limited shall all be paid in, one-half thereof within one year, and the other half thereof within two years from the incorporation of said company, or such corporation shall be dissolved.”</p> <p>Meld, that a creditor who had recovered a judgment against a corporation, and had issued an execution thereon which had heen returned unsatisfied, was not required to wait until the period prescribed by the statute, within which the capital stock should be paid in full, had expired, before bringing an action to enforce the individual liability of its stockholders.</p> <p>Phillips v. Therasson (11 Hun, 141) distinguished.</p>

<p>Appeal from a judgment in favor of the defendants, entered upon the trial of this action at a Special Term.</p>

<p>Practice — defeat of parties, when waived, unless the objection is taken by answer — evidence — what admissible to show the good faith of a vendee when the sale is attacked as fraudulent — what facts do not show a sale to be fraudulent.</p> <p>On October 2,1883, Robert Gordon, a merchant carrying on business in Oswego, sold and transferred, by a bill of sale, his stock of goods and other property to Donald Gordon, a merchant carrying on business at Rochester, in consideration of $1,000 in cash and of the notes of the vendee for $9,000, payable in three, six, nine and twelve months thereafter. On the next day Robert made a general assignment of all his property, exclusive of that embraced in the sale, to one Oliphant. After the execution of the bill of' sale, Donald Gordon carried on the business in the stores formerly occupied by Robert until. December 20,1883, on which day he made a general assignment for the benefit of his creditors to one Wolf.</p> <p>Upon the trial of this action, brought by a judgment creditor of Robert, to have the sale to Donald declared fraudulent, and to compel Wolf, his' assignee, to account for the property received, the defendants moved to dismiss • the complaint, upon the ground that Oliphant, the assignee of Robert, had not been made a party, or to suspend the proceedings until he should he brought into the action.</p> <p>Held, that the motion was properly denied for the reason:</p> <p>Mrst. That, as the defect appeared upon the face of the complaint, the objection should have been taken by demurrer or answer.</p> <p>Second. That the complaint alleged, and the answer admitted, that the property sold to Donald was not included in the assignment.</p> <p>After the execution of the bill of sale, Robert and all his employees were employed by Donald to carry on the business as before, and no sign was put up over the store indicating the business to he that of Donald. The vendor testified that the sale was made in good faith, and without any intent to hinder, delay, cheat or defraud his creditors. Upon the trial Donald offered to show that in the assignment which he made to Wolf, the notes given to Robert were-preferred, and their payment secured.</p> <p>Seld, that the court erred in rejecting the evidence.</p> <p>That the facts did not satisfy the court that a judgment should be rendered in, favor of the plaintiff, and that a new trial should be ordered. (Daniels, J., dissenting.)</p>

<p>libel— an article charging a woman with being an illegitmate child, is libelous per se.</p> <p>This action was brought to recover damages for the publication of a libel in the defendant’s newspaper. The publication complained of pm-ported to be a report of the proceedings in the Court of Chancery, at Louisville, Kentucky, in the case of a negro who was seeking to obtain a divorce from his wife. The account stated that the defendant in the action for divorce and a sister had been adopted by a leading physician of Louisville, and' that “ it is said that both the daughters are illegitimate children of the adopted father’s intimate, friend, and were raised in a spirit of philanthropy.”</p> <p>Séld, that the article was libelous per se, without proof of special damage.</p>

<p>Pledge of stock to secure a ban — the hypothecation of the sbck by the pledgee is a. conversion thereof— the plédgor cannot recover the stock without paying the debt.</p> <p>On April 26, 1884, the plaintiff borrowed from the firm of Grant & Ward the-sum of $455,000, payable in four months, with interest at the rate of five and-one-half per cent per annum, and as security for such payment deposited with the said firm certificates for 11,477 shares of the capital stock of a railroad company. It also gave to the said firm its promissory note, reciting the deposit of the shares as security and authorizing their sale in case of nonpayment of the note when due. Before the maturity of the note, and on May ■ eighth, the firm made a general assignment to the defendant Davies, and on the following day he was appointed the receiver of the assets of the firm. Prior to that time the firm had parted with all the certificates deposited with it by the 'plaintiff, some having been sold, and some hypothecated to secure loans made to it. One hundred shares had been hypothecated with other securities to an insurance company, to secure a loan which had been repaid by the sale of the other securities prior to May twenty-fourth.</p> <p>In this action, brought by the plaintiff to recover the said 100 shares, the defendant Davies was substituted as defendant in the place of the insurance company.</p> <p>Held, that although the unauthorized hypothecation of the 100 shares constituted a conversion thereof, and authorized the plaintiff to maintain an action therefor without a demand and tender, yet it did not destroy the contract of pledge so as to entitle the pledgor to demand a return of the collateral without a tender or payment of the debt.</p> <p>That as this action related only to a portion of the stock pledged, the court below should have applied the doctrine of recoupment with reference to the value of the shares, that is, it should have determined the relation of the 100 shares to the whole number deposited, the value of each share, and the amount which was to be allowed as a counter-claim in response to the demand for the damages occasioned by the conversion.</p>

<p>Appeal from an order of the Special Term, denying a motion for a new trial.</p>

<p>Appeal from a judgment, entered upon a verdict for the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p>

<p>Order of arrest — what facts show a fra/adulent disposition of firm property with intent to defraud creditors.</p> <p>In an actionjcommenced against one Nathanson, by his copartner, to dissolve the firm, a summons had been issued and served, but an injunction restraining Nathanson from interfering with the property, pending the action, had not been served, although granted, for the reason that Nathanson kept out of the way in order to avoid service. Nathanson at the time had in his possession bills of lading of goods then in bond, upon which the duties had not been paid. Without the knowledge of his copartner he withdrew these goods and converted them to his own use. In this action, brought by a firm creditor against Nathanson and his partner, an order for the arrest of Nathanson was granted upon the ground that he had fraudulently disposed of firm property with intent to defraud its creditors.</p> <p>Held, that the order was properly granted</p>

<p>Appeal from an order of the Special Term, denying a motion of a purchaser at a foreclosure sale to have a deduction made from his bid because of a defect in the title to a portion of the premises, and to be allowed to take title to the residue of the premises sold.</p>

<p>Change of place of trial— when an action wül be removed from the Superior Court of the city of New TorJc, in order to change the place of trial for the convenience of witnesses.</p> <p>The plaintiff, a resident of the State of Pennsylvania, who had heen appointed administrator of one Boose, by the surrogate of' Orleans county, in which county the said Boose had died from injuries caused by a collision occurring therein upon the road of the defendant corporation, brought this action to recover the damages thereby occasioned, against the said corporation in the Superior Court of the city of New York. The defendant moved to have the action removed from the Superior Court to the Supreme Couit and to have the place of trial changed to the county of Oswego for the covenience of witnesses. All the witnesses on the part of the plaintiff resided in the State of Pennsylvania, except one, who resided in the State of New Jersey. The affidavit of the defendant showed that eight of its witnesses reside-in the county of Oswego, five in Orleans county, one in Onondaga county and two in Monroe county.</p> <p>Held, that the motion should be granted.</p> <p>That the fact that the plaintiff’s non-resident witnesses could more conveniently come to the city of New York than to the county of Oswego was no answer to the motion.</p>

<p>Party-wall — when a covenant to pay therefor rum with the land — when a party taking subject to a covenant cannot dispute the liability of his grantor — when the parties are not entitled to a hearing before the appraisers.</p> <p>Boggs, the owner of a lot on the south side of a street, being about to erect a house thereon, entered into an agreement, which was duly recorded, with one Lilienthal, the owner of anad 'oining lot, by which'it was agreed that the easterly wall should be built as a party-wall, the description, dimensions and extent of the said wall being given therein. The agreement then provided: “ The moiety of expenses for said wall to be paid by the party of the second part, his heirs or assigns, whenever he or they begin to take use or benefit of the same. And the said parties hereto do hereby mutually covenant and agree, for and with themselves and their respective heirs and assigns, that if it shall become necessary to repair or rebuild the whole or any portion of the ■ said party-wall, the expense of such repairing or rebuilding shall be borne equally by the parties hereto, their respective heirs and assigns, and that whenever the said party-wall, or any portion thereof, shall be rebuilt, it shall be erected on the same spot where it now stands, and of the same size and of the same or similar materials; it is further mutually understood and agreed by and between the parties hereto, that this agreement shall, be perpetual, and at all times be construed into a covenant running with the land, and that no part of the fee of the soil herein described, and upon which said party-wall is inclosed, shall be transferred or conveyed in or by these presents.”</p> <p>Lilienthal conveyed his lot to one Mix, who conveyed it to Lilienthal’s wife, who joined with her husband in conveying it to Oppenheimer and Metzger. None of these deeds referred to the said agreement or the obligations thereby created. In the next conveyance, which was to Orawford, the agreement was referred to, and the deed was made subject to it. Crawford conveyed to Pupke by a deed which declared that it was made subject to the covenants and conditions contained in the agreement, and that the grantee agreed, " as a further consideration for this conveyance, to perform all the obligations of the said party-wall agreement which, in any manner, are binding upon the said Margaret Crawford, one of the parties hereto, of the first part.” Pupke conveyed the premises to the defendant by a deed containing similar provisions. The defendant having erected a building upon his lot and used the party-wall, Boggs assigned his claim for compensation for one-half of the cost of erecting the same to the plaintiff, who brought this action to recover the same.</p> <p>Held, that, as the original covenants relative to the party-wall were duly recorded, and all subsequent parties had notice thereof, and the defendant’s title was made subject thereto, he was equitably estopped from denying the liability of his grantors under the said covenants.</p> <p>•That he was estopped from denying that the value of the half of the wall had so effected the consideration of the sale as to shift the burden of the covenant upon the shoulders of the subsequent grantees. (Per Davis, P. J.)</p> <p>That the covenants ran with the land, and the defendants were bound thereby.</p> <p>(Per Brady, J., Daniels, J., dissenting.)</p> <p>'That the plaintiff was entitled to recover. (Daniels, J., dissenting.)</p> <p>Where, from the terms of an agreement providing for a party-wall and the appraisal of the amount to be paid by a party using it, it appears that the appraisers are to fix and determine the value of the wall by their own inspection and examination, a hearing of the parties before them is not a necessary part of the proceedings.</p> <p>Wiberly v. Matthews (91 N. Y., 648), followed.</p>

<p>Injunction restraining the unlawful construction of a railway in a street — it should restrain only the unlawful acts specifically found to exist.</p> <p>The complaint in this action alleged that the defendant, a railroad company, had wrongfully and unlawfully taken possession of a portion of Thirty-fourth street, in the city of New York, tearing up the pavement and soil and obstructing the street by constructing a surface railway through the same without having obtained the consent of a majority of the owners of lots abutting upon said street, or an order of the Supreme Court allowing its construction notwithstanding the refusal of such consent, or the consent of the several railroad corporations then occupying with surface railways, portions of the said street.</p> <p>The court found that the defendant was doing and attempting to do the several acts as so alleged in the complaint, and that the plaintiffs were entitled to a perpetual injunction, restraining and enjoining the defendant, its agents, servants, contractors, sub-contractors and laborers from constructing or operating a railroad in the said portion of the said street, and from taking up the pavement or interfering therewith, from laying down timbers or rails and from doing any act or thing towards the construction or operation of a railroad therein.</p> <p>Held, that the relief granted was too extensive; that the restraint should be limited to the doing of the unlawful acts alleged in the complaint and found and described in the finding of fact, and should not include such as might possibly hereafter be done under the sanction of lawful authority.</p>

<p>Motion on tbe part of tbe appellant for a stay of proceedings ou tbe part of respondent.</p>

<p>Motion for a new trial, made in the first instance at the General Term, upon exceptions to the findings of the court in the nature of an interlocutory judgment finder the provisions of section 1001 of the Code of Civil Procedure, and an appeal from the interlocutory judgment.</p>

Appeals from an order denying a motion to vacate the attachment herein, or to so modify it that it should run only against the property of the defendant in his personal capacity, and from an order denying a motion to vacate an order for the service of the summons herein by publication.

Appeal by the defendants John McC. Gano and Jane W. Gano from an order made at the Special Term denying a motion for leave to file exceptions nunc pro tunc, that a notice of appeal be declared valid and the service thereof legal.

<p>Certiorari to review an assessment for the purposes of taxation for the year 1885.</p>

Wheeler, Esq., the sum of $500, ou account of his fees for services as referee to take the proofs and evidence touching the compensation to be paid to Thomas B. Rand, late receiver in this action; such payment to be made out of the moneys on deposit with the trust company to the credit of the action.

Appeal by tbe defendant from a judgment of tbe Special Term, restraining .him from executing the plumbing and drainage of certain houses, in violation of the directions of the board of health.

Appeal by the defendant Watson from an order made by Mr. Justice Lawrence continuing an injunction. The plaintiff let to the defendant Stewart an apartment in the apartment house known as the “ Barrington,” in the city of New Tork, for a term of three years from 1st May, 1883, at an annual rent of $1,800.

Appeals from orders denying motions to compel plaintiff to receive an unverified answer, and from orders denying motions to vacate judgments.

Appeal by Patrick Nolan and others from an order made on the 8th of July, 1885, appointing commissioners to ascertain and appraise the value of certain property required for the construction of the petitioner’s railway.

Appeals by both tbe plaintiff and defendant from an order confirming tbe report of a referee, and from tbe judgment entered upon it, and by tbe plaintiff from an order denying a motion to amend tbe judgment entered in tbe action, and by tbe defendant from an order excluding tbe allowance of tbe expenses of a receivership.

<p>Negligence — passenger in a street car not responsible for the negligence oj the conductor or driver — statutory signals must he sounded at intervals — 2 B. 8. (Gth ed.), 542, sec. 61 — facts not connected with the issues need not be submitted to a jury</p> <p>This action was brought to recover the damages occasioned by the death oí the plaintiff’s intestate by reason of the collision of a locomotive engine, belonging to the defendant, and a street car in which the intestate was riding as a passenger. The collision took place near the hour of twelve o’clock at night, at a point where the street railroad crosses the line of the railroad on which the engine was running. The evidence as to whether or not the bell of the engine was rung or the whistle sounded was conflicting. The conductor of the car in which the intestate was, and the conductor and the driver of another car approaching the railroad a block off who had their attention directed to the subject, all testified to the effect that they did not hear the signals.</p> <p>Held, that the question was properly submitted to the jury.</p> <p>That, as the intestate was a passenger upon the car, having no control over its movements and nothing whatever to do with its direction or management, the negligence of the driver or conductor was not imputable to him, and the fact that their negligence contributed with that of the defendant’s engineer and fire- ■ man, in causing the accident, would not defeat the plaintiff’s right to recover.* That tho intestate himself was not bound to stop, look or listen for an approaching train, but could, as a passenger, reasonably assume that proper care and attention would be given at the crossing by those in charge of the car, befoie an attempt would be made to go over it.</p> <p>The evidence of the defendant showed that the engine stopped at Atlantic avenue, which was distant the width of three blocks and two streets from the place of the collision.</p> <p>Held, that the court properly refused to charge that, “from the fact of the engine in question starting from Atlantic avenue, it was a sufficient compliance with the statute if this whistle was blown immediately upon or after leaving Atlantic avenue,” as the statute (2 R. S. [6th ed.], 542, § 61) required that the whistle should be sounded “at intervals until it shall have crossed such road or street.”</p> <p>The court was also requested to charge that “ a failure to recover, or a recovery, in no way effects the plaintiff’s rights in an action against the Broadway Railroad Company.”</p> <p>Held, that it was proper to refuse so to charge.</p> <p>The obligation of a railroad to keep a flagman at a station considered.</p>

<p>Valse representations — what representations will sustain an action for damages.</p> <p>This action was brought to recover damages arising out of the alleged fraud of the defendant, consisting in his procuring from the plaintiff, by means of false representations, a writing which permitted him to leave the jail liberties of the county of New York, where he was under arrest under an execution against his person, issued upon a judgment recovered by the plaintiff, and to proceed to the city of Brooklyn. The complaint was dismissed upon the ground that the representations made by the defendant, to induce the plaintiff to subscribe the writing permitting him to leave the jail liberties, were that it would not affect her rights or interests in the judgment, or her remedy for the enforcement thereof.</p> <p>Upon the trial the plaintiff offered to show that, in addition to the aforesaid representations, the defendant made certain other representations charged in the complaint, viz., that he desired the paper to 'prevent his arrest, or to prevent his being molested in Brooklyn by the sheriff, upon an execution out against him there, and that he wanted to give up books and papers that he held at that time, and that he could not give them up without this paper. Held, that the court erred in excluding this evidence, as the proof of the making of those representations, and their falsity, would justify a recovery by the plaintiff.</p>

Appeal by tbe plaintiff from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial made apon the minutes of the justice before whom the action was tried.

<p>Appeal from a judgment recovered on a trial before the court.</p>

<p>Will — construction of a devise to the survivors on the death of a member of a class — when an absolute estate is not limited by a recommendation as to the disposition to be made of the property.</p> <p>A testatrix directed that in case her child should die before reaching legal majority without lawful issue, that all her property should go to her three sisters, naming them, and her husband, share and share alike. “ In case of the death of either of my sisters, the property herein bequeathed to them is to go to the survivor or survivors, and at the death of all the persons herein named as taking on the death of my child, it is recommended the amount of property coming to them shall go to the lineal descendants of John Moffat.” The testatrix died without children.</p> <p>Held, that the sisters and the husband, surviving the testatrix, took an absolute estate to all her property, which was not limited by the recommendation as to the disposition which should be made of the property upon their death, or that of the survivor of them.</p>

<p>Appeal from a judgment, recovered on a trial at the Special Term.</p>

The petitioners demised the premises Nos. 443 and 445 Broadway, to Oscar Strasburger for five years, from January 1,1881, at the yearly rent of $32,500, payable quarterly, on the first days of February, May, August and November, by a lease in writing, dated December 20,1880. The lessee entered into possession under the lease, and so remained, carrying on a general fancy goods and toy business, paying the rent until and including the 1st day of August, 1884.

<p>Appeal from a judgment, entered upon the decision of tbe court, upon a trial at the Livingston Circuit, without a jury.</p>

Tbe plaintiffs are owners or 1 (sees of mills and manufactories situate upon Honeoye creek, below its junction with tbe outlet of Hemlock and Canadice lakes.

Motion by the defendant Peck to compel the plaintiff to satisfy a judgment recovered against him in this action. The action was for the publication of a libel by the defendants Peck & Greenhow, in a newspaper of which the defendants were the publishers and proprietors. The General Term affirmed the order made below* upon an opinion there delivered by Judge Rumsey, of which the following is a copy.

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the Cattaraugus Circuit, and from an order denying a motion for new trial.</p>

<p>Canals — what persons cannot be employed upon them.</p> <p>The plaintiff brought this action to recover the damages occasioned by the overflowing of his lands which was caused by the raising of the flush'boards on a dam at the outlet of Owasco lake, by the defendant. The defense was that the dam was owned by the State, and that the defendant, in doing the acts complained of, was acting under its authority and as its agent. It appeared that the dam was usedfby the State to furnish a supply of water for the Port Byron level of the Erie canal. The defendant was a director and the superintendent of the Auburn Water Works Company, which obtained its water from the same dam. In 1881 the assistant superintendent of public works, having charge of the middle division of the canal, authorized the defendant, upon his application for discretionary authority in that behalf, to close and open the gates or flush boards as might be necessary.</p> <p>Meld, that the attempt to oonfer this authority upon the defendant was a violation of the statutes providing that no person owning any hydraulic works dependent upon the canals for their supply of water, or who shall be employed in or connected with any such works, shall be employed as a superintendent, lock-keeper, collector of tolls, weighmaster or other agent upon the canals and that it was for that reason void.</p> <p>That the fact that an award made some years ago by the canal appraisers, upon an application for damages for injuries arising from the use of the same flush boards, was adverse to the plaintiff’s claims, was not a bar to this action, as there was no privity between the State and the defendant.</p> <p>Note. — The balance of the cases decided at this term of the court will be found in (39 Hun) the next volume.</p>