Volume 5 — E.H. Smith

Term of the Supreme Court in the first judicial department, entered upon an order made April 13, 1894, which denied a motion for a new trial made upon excejitions ordered to be heard in the first instance at General Term, overruled the exceptions and ordered judgment in favor of plaintiff upon a verdict directed by the court.

<p>Motions for leave to appeal to the Court of Appeals.</p>

<p>1. Court of appeals—Review.</p> <p>Court of appeals has no power to review a judgment or order of the appellate division of the supreme court made in a special proceeding of a criminal nature, which originated in a police court or court of special sessions.</p> <p>2. Appeal—Prosecution.</p> <p>Whether the people or the prosecution, under whatever name the proceeding may be instituted, have the right to appeal to the supreme court, after a reversal by the county court or court of sessions, is open to grave doubt.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The law requires the filing of a certificate when the stock is issued in payment for property, as well as when paid in cash. The complaint, alleging the non-filing of such a certificate, is, therefore, sufficient.

This action was brought to recover the amount alleged to he due on a policy of fire insurance. The facts, so far as material, are stated in the opinion. The defendant is estopped from its present defense. (Ellis v. A. C. F. I. Co., 50 N. Y. 402; More v. N. Y. B. F Ins. Co., 130 N. Y. 537; Forward v. C. Ins. Co., 142 N. Y. 382; Baumgartel v. P. W. Ins. Co., 136 N. Y. 547; Whited v. G. F. Ins.

This action is brought by the widow of William A. Martin to recover a death claim under a policy issued by the defendant November 9,1888, to the said William. The insured died at Binghamton (his place of residence) May 10th, 1889.

This action was brought to recover damages for a personal injury alleged to have been caused by the defendant’s negligence. The facts, so far as material, are stated in the opinion. To make out a cause of action it must be established, not only that a defendant was guilty of a negligent act, but that the injury was produced, by a cause which might naturally and reasonably be expected to follow from the negligent act.

The nature of the action and the facts, so far as material, are stated in the opinion. The decision of the trustees on the plaintiff’s claim, when presented, was an adjudication of a competent tribunal, having jurisdiction to act, and bars the plaintiff from any action. The only remedy available to the plaintiff was one to review the determination made by the trustees.

The nature of the action and the facts, so far as material, are stated in the opinion. It was competent for the appellant to prove by parol evidence that the house was personal Droperty, and defendants’ admissions that it was appellant’s property and that she could remove it were sufficient as against them. (Dubois v. Kelly, 10 Barb. 496; Taylor’s Land. & Ten. § 550, n. 5; Tyler on Fixtures, 667; Kennedy v. Strong, 14 Johns. 128, 131; Eisenlord v. Clum, 67 Hun, 518; S. Mfg.

<p>Res Adjudicata—Landlord and Tenant. A valid j udgment, regularly obtained by the landlord in summary proceedings to dispossess a tenant for non-payment of rent, is a bar to an action brought by the tenant against the landlord to cancel the lease between them, on the grounds that it was intended as a mortgage and was usurious, although those questions were not actually litigated or considered in the summary proceedings.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. ■ The binding slip mentioned in the opinion was as follows, Beecher & Benedict being the plaintiff’s brokers and William Adams the representative of the defendant company : “ Beeoher & Benedict. “New York,..............189 . “Insure E. M. Van Tassel. “ §10,000 for 12 months @ “ On ' “ Building 1ST. E. corner 13th Ave. & W. lltli Street, H. Y. City. “In Store Binding this 1 day of January,…

The nature of the action and the facts, so so far as material, are stated in the opinion. The defendant Merrill was liable only as a bailee for ordinary care and prudence, and the plaintiff was not entitled to a recovery without establishing negligence or bad faith. (Lane v. Cotton, 1 Ld.

The nature of the action and the facts, so far as material, are stated in the opinion. The wall and bridge being located where they are without legal authority, constitute a nuisance, which the plaintiff, who is specially injured thereby, is entitled to have removed.

Appeal, by permission, from a judgment of the General Term of the Court of Common Pleas for the city and county of Hew York, entered August 1, 1894, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial made upon the minutes. This action was brought to recover a sum of money alleged to have been lost by plaintiff when a passenger upon one of defendant’s steamboats.

<p>Appeal — Actions por Personal Injuries — Code Ciy. Proc. § 191 — Proof op Unanimous Decision. The burden of showing that a judgment of affirmance in an action for a personal injury was by a unanimous decision of the Appellate Division rests upon the party asserting it, in order to deprive the Court of Appeals of power to review, under section 191 of the Code of Civil Procedure; and recourse cannot be had to the opinion, but the fact should be established either by the judgment or by a certificate of the court appearing in the record.</p> <p>Reported below, o App. Div. 60.</p>

<p>1. Foreign Judgment—Restraint of Enforcement. A court of one state may, where it has jurisdiction of the parties, determine the question whether a judgment between them, rendered in another state, was' obtained by fraud, and, if so, may enjoin the enforcement of it, although its subject-matter is situated in such other state.</p> <p>2. Foreign Decree of Distribution of Decedent’s Estate — Restraint of Enforcement — Jurisdiction. As against persons of whom it has jurisdiction, the Supreme Court has power to entertain an action in equity, brought by one claiming an interest in a decedent’s estate, for a judgment in personam to restrain them from receiving it in pursuance of a decree of a Probate Court of another state distributing it among the defendants and others, where the decree was obtained by fraud, although the property is largely without this state.</p> <p>3. Appeal — Question Certified for Review. On the certification by the Appellate Division, under section 190 of the Code of Civil Procedure, of the question of law whether the Supreme Court has jurisdiction of an action for an injunction which it has refused to entertain, the Court of Appeals cannot determine whether the Supreme Court might in its discretion have declined to entertain jurisdiction.</p>

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 17,1896, which reversed an order of Special Term, denying plaintiff’s motion to amend her complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The amendment sought to add to the complaint a new cause of action, to wit, a cause of action for false imprisonment.

<p>1. Benefit Life Insurance— Construction of Certificate. A. warranty of the truthfulness of representations and a waiver of provisions of law preventing disclosures of professional communications by a physician, contained in an application for membership in a fraternal beneficiary society, are, when nothing inconsistent with such intention appears, to be deemed to have been made a part of the contract of insurance, under the word “ statements,” when the certificate issued on the-application states that it was issued “upon condition that the statements made [by the applicant] in his application for membership * * * be made a part of this contract.”</p> <p>3. “Statement” Defined. The meaning of the word “statement” is not necessarily limited to the statement of a fact or the substance of a case, but may also include the provisions of a contract.</p> <p>3. Professional Communications — Waiver of Privilege. The waiver, by the applicant, in an application for membership in a fraternal beneficiary society, of the provisions of law preventing disclosures by a physician, is not against public policy, and if made part of a contract of life insurance entered into when the statute (Code Civ. Proc. § 836) authorized such a waiver without restriction as to time, it is not affected by the-subsequent amendment of the statute, requiring the waiver to be made upon the trial, but remains binding upon the beneficiary when seeking to-recover upon the contract.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The mortgage in question cannot be sustained by virtue of any authority conferred upon the Surrogate’s Court to direct the disposition by sale or mortgage of the real property of a deceased person for the payment of debts under the provisions of section 2749 of the Code of Civil Procedure, and the following sections.

<p>1. Court of appeals — Power under section 528 of the Criminal C -de.</p> <p>The court of appeals, while it has-the power in a capital case to review the facts and grant a new trial when satisfied that the accused has not had. a fair trial, or when it appears that injustice has been done, must, however, observe the rules and principles which apply to all tribunals exer’s cising appellate jurisdiction.</p> <p>2. Same.</p> <p>When the issue of fact is once determined by the jury upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, the court of appeals has no more right than the trial court to substitute its own judgment in the place of that of the jury or to usurp its legitimate functions.</p> <p>3. Supreme court—Designation.</p> <p>The requirement of section 232 of the Code of Civil Procedure, requiring justices of the appellant division to make the appointments before the 1st day of December, 1895, is directory, and the fact that they did not make the designations until three days afterwards, does not affect the validity of the act.</p> <p>4. Same.</p> <p>The fact that the appellate division had no legal existence1 under the Constitution until January 1, 1896, does not exclude the power of the justices, after their appointment and before that day, to assemble and designate the terms of the court and assign the justices who were to preside therein.</p> <p>5. Same.</p> <p>But if any irregularity in the designation arose from this fact, it was cured by the redesignation on that day, when the jurisdiction of the court became complete.</p> <p>6. Grand jury—De facto.</p> <p>A grand jury regularly drawn from the body of the county, summoned and sworn as provided by law, is at least a de facto jury, and sufficient for the protection of all the defendant’s constitutional rights, though the designation of the term of the court was not in strict compliance with the Constitution or the statute.</p> <p>7. Evidence—Insanity—Expert.</p> <p>It is not legal error to permit a medical expert who has made a personal examination of the patient for the purpose of determining his mental condition, to give his opinion as to that condition at the time of the examination, without in the first instance disclosing the particular facts upon which the opinion is based.</p> <p>8. Same.</p> <p>When it is shown that a medical expert has made the proper professional examination of the patient in order to ascertain the existence of some physical or mental disease, he is then qualified to express an opinion on the subject, though he may not yet have stated the scientific or external symptoms on which it is based.</p> <p>9. Same—¡Nonexperts.</p> <p>Nonexperts are not allowed to express an opinion on the subject of sanity or insanity, or as to whether the party was in fact rational or ir_ rational, but only to state the impression that the acts and declarations of the party concerning whom the inquiry is made produced upon their minds at the time.</p> <p>10. Same.</p> <p>Where.the testimony, though the questions were improper in form., amounts to nothing more than the impressions which the witnesses derived from the acts and conversations related, and there is no reason to believe that it was understoodr by the jury in any other sense, error in admitting it is not ground for reversal.</p> <p>11. Same—Objection.</p> <p>Objection, so made as not fairly to indicate the ground, raises no question on appeal.</p> <p>12. Witness—Impeachment.</p> <p>A question, or an offer of proof intended to be the foundation of :the impeachment of a witness, should be clear and specific. If it does not ■ embrace all the elements of a contradictory or inconsistent'act or statement made out of court, it may properly .be excluded.</p> <p>13. Court of appeals—New trial.</p> <p>The power of the court of appeals to grant a new trial upon erroneous rulings at the trial is ample, even though no exception has been taken; but, in siich a case, it should appear that some principle or rule of law has been violated to the prejudice of the accused.</p> <p>14. Same.</p> <p>The power to grant a new trial for legal error must be exercised in conformity with another provision of the statute, which requires that judg" mentí upon an appeal must be rendered without regard to technical errors or defects, or exceptions which do net'affect the substantial rights of the parties.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the court below to decide that this action was prematurely brought.

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Carriers—Reasonableness op Rule. If the facts are undisputed and not susceptible of different inferences, the question of the reasonableness of a rule of a carrier of passengers is one of law, and should not be submitted to the jury.</p> <p>2. Street Car Company—Rule as to Furnishing- Change. A rule of a horse street car company in a large city, requiring its conductors to furnish change to passengers to the amount of two dollars, is reasonable; and a tender, by a passenger, of five dollars to be changed for a five-cent fare is unreasonable and need not be accepted.</p> <p>3. Knowledge op Rule. A common carrier is not required to bring home to each passenger a personal knowledge of any reasonable and just rule which it is seeking to enforce.</p>

<p>1. Will — Contingent Devise to a Class. The general rule is that a future and contingent devise or bequest to a class takes effect on the happening of the contingency on which the limitation depends only in favor of those objects who at that time come within the description.</p> <p>2. Devise Construed. A will stated that, in a certain contingency, the residuary estate should, on the death of the testator’s wife,</p> <p>“descend to my sisters and their heirs and assigns, and to the children of my deceased brother, and their heirs and assigns. The children of any of my sisters or of my brother are only to receive the same share that my brother or sisters would receive if they were living at the decease of my said wife.” A sister of the testator had died before the making of the will. Held, that a child of such deceased sister was not included in the devise, and, hence, w’as not entitled to share in the residuary estate.</p> <p>3. Residuary Estate. Any part of a testator’s estate not legally disposed of becomes a part of the residuary estate and passes under a residuary clause embracing both real and personal property, in the absence of a contrary intention found in the will.</p>

Appeal, by permission, from a judgment of the Genera] Term of the Supreme Court in the second judicial department, entered February 26, 1894, which reversed a judgment of the Orange County Court, reversing a judgment of a justice of the peace of the town of Deerpark, Orange county, in favor of the plaintiff. The nature of the proceedings and the facts, so far as materia], are stated in the opinion.

<p>1. Appeal—Defects Avoidable at Trial. Defects, which, if pointed out during the trial, might have been obviated or avoided, are not available on appeal.</p> <p>2. Allegation and Proof—Variance — Objection First Raised on Appeal. When evidence of items beyond the claim alleged in a pleading has been received on the trial, without objection or motion to strike out on the ground of variance, and it appears that if objection had been made at the trial it might have been avoided by the allowance of an amendment, the court of review should, on the objection being raised for the first time on appeal from a judgment including such items, consider the facts as proved, rather than as alleged, and regard the pleading as amended accordingly by implied consent.</p> <p>3. Written Contract-—Oral Testimony as to Agency of Maker. Oral testimony, competent to show that the person by whom and in whose name a written parol executory contract was made, was an agent and not a principal, is not open to the objection that it shows a different agreement than that produced in writing.</p> <p>4. Acceptance of Incompetent Oral Testimony. The parties to an action may, by agreement, express or implied, accept oral testimony instead of the presumption ordinarily arising from written evidence; and they are presumed to have done so, when testimony, otherwise incompetent, is received without obj ection and without any effort to have it stricken from the minutes, or disregarded by the trial court.</p> <p>5. Waiver of Incompetence of Oral Testimony to Vary a Written Instrument. When a party, by failing to raise the question before the close of the trial, has waived the benefit of the rule that evidence of what was said between the parties to a valid instrument in writing, either prior to or at the time of its execution, cannot he received to contradict or vary its terms, he cannot, after the case has been decided against him, invoke the rule in order to secure a reversal of the judgment.</p> <p>6. Modification of Written Contract by Oral Testimony. The effect of a written instrument, importing an entire contract to furnish labor and materials for a stipulated gross sum, may he modified, and a claim for partial performance of the contract established, by the introduction, not challenged before the close of the trial, of oral testimony of an agreement to pay for the labor and materials in installments and of the value of the labor done and materials furnished.</p>

Teresa A. Colton was one of the plaintiffs at the commencement of this action. It was commenced in October, 1888, Subsequently, and on April 6,1891, while it was still pending she died, leaving a last will and testament wherein Charles H. Colton was named as exectitor. The will was duly admitted to probate in 1891, and letters testamentary issued to him as sole executor.

Henry 0. Giles died April 27tli, 1887, leaving a last will and a codicil thereto, which in due time and form were admitted to probate by the surrogate of the county of Hew York.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was entitled to judgment in his favor on the pleadings; it was a- reversible, error to grant defendant affirmative relief. (Fleischmann v. Stern, 90 N. Y. 110; Beard v. Tilghman, 66 Hun, 12.) Defendant’s answer contains no denial, nor any statement of new matter constituting a defense or counterclaim. (Code Civ.

Fairchild was the regular Republican candidate for representative in Congress for the sixteenth congressional district, decided that William L.… Held: this court should now hear this appeal and decide the questions raised thereby. (In re Emmet, 150 N. Y. 538; Hobart v. Hobart, 86 N. Y. 636; N. P. Bank v. Goddard, 48 N. Y. S. R. 743-744; Code Civ. Pro. § 1294.) The record before Justice Edwards did not justify his order declaring Ward to be the regular Republican nominee.

Appeal by the relator from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 30, 1896, which reversed an order of the Special Term directing that á peremptory writ of mandamus issue commanding the respondents to desist and refrain from printing the name of Ben'L Fairchild as a candidate nominated by the National Republican party for representative in Congress upon the official ballot.

<p>1. Equity — Impossibility of Specific Performance—Legal Relief. When it appears upon the trial of an action, in which the complaint sets' forth a cause of action for specific performance, that, although the plaintiff is entitled to equitable relief, it cannot be granted because of the defendant’s inability to perform, the complaint should not be dismissed, but the plaintiff should be allowed to establish his right to legal relief under a claim for damages sustained by a breach of the agreement relied on.</p> <p>2. Trust Mortgage — Rights Enforceable by Bondholder, on Refusal of Trustee to Sue. Whatever rights, as against the mortgagor, are vested in the trustee of a mortgage given to secure the payment of bonds, inure to the benefit of the bondholder and are enforceable by him, in case of refusal or neglect on the part of his trustee to act for him upon request.</p> <p>3. Railroad Mortgage — Agreement to Furnish Additional Underlying Security — Enforcement of Performance. On the refusal of the trustee of a railroad mortgage to sue for specific performanee of an agreement made by the mortgagor company and its organizers and promoters, being the ostensible owners of real estate contiguous to the railroad, to convey such real estate to the trustee as additional security under the mortgage, a mortgage bondholder may maintain such an action against the mortgagor company, on behalf of himself and other bondholders similarly situated, before default upon the bonds.</p> <p>4. Bondholdeb’s Action—Relief in Lieu of Specific Pebfobmance. If, in an action instituted by a railroad mortgage bondholder, on the refusal of the trustee to sue, for specific performance of an agreement, made by the mortgagor company and its organizers and promoters, to furnish additional underlying security for payment of the mortgage bonds, it appears that the liability exists but performance cannot be decreed, the court should award the plaintiff such relief as it deems him entitled to.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Mr. Morrissey did not acquire by his lease, or deed, or otherwise, any legal right or easement to maintain his pipes, sluices, drains, boxes and reservoirs upon defendant’s adjoining land. (White v. M. R. Co., 139 N. Y. 19; 6 Am. & Eng.

The defendant was convicted in the Court of General Sessions of the Peace in and for the City and County of New York of the crime of burglary in the second degree, as a second offense. The indictmint contained three counts.

<p>Negligence—Railroads — Master and Servant—Relation op Railroad Employees to Temporary Private Employer and his Regular Employees. When a railroad company’s engine crew run their engine upon a switch track on the premises of, and owned by, a private shipper of freight, at the request of the shipper, to couple and move cars for him on his track, under his orders, they discharge their duty to all his regular employees by notifying the shipper of their readiness to proceed with his work, and while engaged therein they are in law his servants; and when the shipper has been so notified, the railroad company will not be liable for a personal injury sustained by a regular employee of the shipper, caused by the omission of the engine crew to notify such employee of their intention to couple a car about which he was working.</p>

This action was brought to recover damages sustained by the death of plaintiff’s intestate through the alleged negligence of defendants. The facts, so far as material, are stated in the opinion. The motion for a dismissal of the complaint should have been granted, as it appeared by the plaintiff’s testimony that the defendants were in no wise negligent, and that the accident was to be attributed directly to the negligence of the fellow-servants of the deceased.

The nature of the action and the facts, so far as material, are stated in the opinion. The question as to whether plaintiff was guilty of contributory negligence or not, under the circumstances, should have been submitted to the jury.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in admitting evidence that plaintiff suffered loss of anyffncome, except what he may have lost by reason of his absence from his business in consequence of being confined to his house on account of the injury he received.

This action was brought to recover damages for injuries sustained by the plaintiff, alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion. The court erred in denying defendant’s motion for a nonsuit, as it does not appear from the evidence that the defendant owed any duty, statutory or otherwise, in regard to this highway at the point where the accident occurred.

<p>1. Partnership at Will—Dissolution. Tlio dissolution of a partnership at will may he implied from circumstances; but when not the result of mutual agreement there must he notice by the party desiring a dissolution, to his co-partner, of his election to terminate the partnership, or his election must be manifested by unequivocal acts or circumstances brought to the knowledge of the other party, which signify the exercise of the will of the former that the partnership he dissolved.</p> <p>2. Assignment of Patent—U. S. Rev. St. § 4898. The provision of the Revised Statutes of the United States (§ 4898), that “ every patent or any interest therein shall be assignable in law by an instrument in writing,” does not preclude the acquisition of equitable interests in patents under oral contracts.</p> <p>3. Oral Agreement for Sale of Patent. Oral agreements for the sale of patents may he enforced in equity in the same manner and under the same conditions as oral agreements relating to any other species of personal property or intangible rights.</p> <p>4. Enforcement of Oral Agreement—Partnership. A ease for the enforcement in equity of an oral contract of assignment of a share in a patent is presented when a partnership for the manufacture and sale of articles under the patent has been formed and conducted for several years by the parties on the faith of the contract.</p> <p>5. Agreement to Assign Patent—Payment—Partnership. The fact that a partner, to whom his co-partner had orally agreed to assign a share in a patent as the basis of the partnership and its business, has not paid the purchase price, will not defeat the right of such partner to equitable relief on an accounting of the partnership business, whore it appears that his co-partner has not demanded payment and the judgment allows the latter credit for the purchase money, with interest.</p> <p>6. Stipulation op Partner, for Private Advantage. If one partner stipulates clandestinely for any private advantage or benefit to himself, to the disadvantage or in fraud of his partners, lie will in equity be compelled to divide such gains with them.</p>

<p>1. Highway Leading to Navigable Waters — Extension of Land. The general rule of law, that a public street leading to navigable waters will keep even pace with the extension of the land, whether the change in the land be due to natural causes, or to the voluntary act of the owner of the land, applies to all cases of a public right acquired by dedication, where there is nothing in the facts and circumstances connected with the dedication to show that a restriction was intended and imposed, which would preclude the public from claiming a right of access to the water over the highway.</p> <p>2. Street Terminated by Ferry — Exclusion of Public from Direct Access to River. It is the reasonable inference, from the facts and circumstances connected with the dedication, by the original proprietors of the tract, of Canal street, in the village of West Troy, described in certain contemporaneous instruments as extending “ to the waters of the Hudson river,” that the donors, who also owned the adjacent land under water and reserved the right to operate a ferry, then in existence, at the foot of the street, intended that the ferry should constitute pro tanto a barrier to the public, and that the street should end at the ferry grounds and not furnish direct access to the navigable waters of the river. Hence, the village is precluded, especially after many years’ tacit acquiescence in the private ownership thereof, from now undertaking to exercise authority over an extension of the ferry grounds, redeemed from the river by the owner of the ferry, on the claim that it belongs to the street.</p>

The nature of the action and' the facts, so far as material, are stated in the opinion. The grant to the town of East Hampton, made by Governor Fucholls on the 13th of March, 1666, and confirmed by Governor Dongan on the 9th of December, 1686, operated to convey to the grantee the lands under tide water in Fort Pond bay. (Langdon v. Mayor, etc., 93 N. Y. 129 ; Martin v. Waddell, 16 Pet. 367; Town of Huntington v. Lowndes, 40 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The right to collect wharfage is a franchise, and depends wholly upon express provisions of law. (The Geneva, 16 Fed. Rep. 876 ; Taylor v. A. M. Ins. Co., 37 N. Y. 275 ; The G. E. Berry, 25 Fed. Rep. 780; Town of Pelham v. Woolsey, 16 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. Honora Hyatt never had any title to or right of possession of the land in dispute. (Martin v. Rector, 101 N. Y. 77.) The action is brought to recover the possession of land from the defendant who was actually on the land, and who was actually by physical force withholding the possession from the plaintiff.

This was an action of quo warranto to determine the title to the office of commissioner of highways of the town of Warwick, Orange county. The facts, so far as material, are stated in the opinion. The term of office of commissioner of highways of the town of Warwick became a term of two years by virtue of the resolution of the town meeting of March 29, 1853, and of chapter 344 of the Laws of 1893.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in directing a verdict for the plaintiff and refusing to submit the evidence to the jury. (L. 1890, cli. 565, § 2; L. 1850, cli. 140, § 5 ; Cliitty on Cont. 29 ; 1 Pars, on Cont. 439 ; Pollock on Cont. [4th ed.] 177, 178; Miller v. Drake, 1 Caines, 45.) There was no consideration for any promise to renew the note in suit, made before or at the time said note was given.

Appea'l from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered November 20, 1894, which affirmed a judgment of the Monroe County Court in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Trespass—Ownership ot Land — Marks and Monuments— Question oe Tact. When, in an action for damages for trespass in cutting down and removing trees, a question of fact is raised as to whether the portion of a tract of land to which plaintiff claims title should be located according to the marks and monuments of a survey claimed to have been made by him and a representative of his vendor prior to the purchase thereof, or, as claimed by the defendant, a subsequent purchaser of the remainder of the tract, according to the courses and distances described in plaintiff’s contract of purchase, the question is peculiarly within the province of the jury.</p> <p>3. Evidence — Treble Damages. In an action against two persons for trespass in cutting down and removing trees, opinions concerning the plaintiff’s boundaries expressed by one of them, even if not competent against his co-defendant as declarations of an agent against his principal, may be competent upon the question of treble damages.</p>

<p>1. Poor Person — Order Requiring Payment for Support to County by Relative. The force of an order of a Court of Sessions requiring a relative to pay a certain sum per week to the county superintendent of the poor for the support of an alleged dependent poor person until the further order of the court, is terminated by the termination of the person’s dependency upon the public for support, as, by a discharge from the poorliouse, followed by self-support.</p> <p>3. Res Ad judicata—Termination or Order for Payment for Support. The doctrine of res adjudieata does not preclude the defendant, in an action brought by a superintendent of the poor to recover upon an order of the Court of Sessions requiring a relative to pay a certain sum per week to the superintendent for the support of an alleged dependent poor person until the further order of the court, from showing, as a defense, that the dependency of the poor person upon the county had been terminated by a discharge from the poorliouse followed by self-support, and that the sum accrued for the period during which the county had cared for the poor person had been in fact fully paid, so that nothing was due and owing at the commencement of the action, although the poor person was at that time in the poorliouse by recommitment.</p> <p>3. Delay of Superintendent in Deciding upon Relative’s Offer of Support. A relative of an alleged dependent poor person is not to be held liable, under an order of the Court of Sessions requiring the payment of a certain sum per week to the superintendent of the poor for the support of the poor person, for the period of the superintendent’s delay and neglect to decide upon the sufficiency of a really sufficient offer, subsequently accepted by him, of the relative to personally take and care for the poor person.</p>

The Appellate Division granted leave to the attaching creditor to appeal to this court from the order of affirmance, and certified this question for consideration : “Was the statement sufficient under subdivision 2 of section 1274 of the Code of Civil Procedure ? ” The statement in the confession is that between March 1, 1893, and October 1,1895, the plaintiffs “ loaned and advanced to me divers and sundry sums of money which I agreed to repay them with interest, and also…

The facts, so far as material, are stated in the opinion. The relators had the right to call upon the comptroller to hear and determine their application. (People ex rel. v. Chapin, 105 N. Y. 309; People v. Turner, 145 N. Y. 451; 117 N. Y. 227; Guest v. City of Brooklyn, 69 N. Y. 506 ; People ex rel. v. Wemple, 139 N. Y. 248.) The notice to redeem was defective, and rendered the comptroller’s deed absolutely void.

Motion, by appellant to require the clerk to print and serve the record, as required by statute, upon appeal from a judgment, convicting defendant of murder in the first degree. Frank 0. Conroy was convicted of murder in the first degree and sentenced to death and appeals. Motion by appellant to require the clerk to print and serve the record as required by the statute.

<p>Appeal—Action for Personal Injury — Judgment of Affirmance — Code Civ. Pro. § 191. A judgment entered upon an order of the Appellate Division of the Supreme Court overruling exceptions directed to he heard hy it in the first instance, denying the motion for a new trial based thereon, and ordering judgment upon the verdict, is a judgment of affirmance, within the meaning of the provision of section 191 of the Code of Civil Procedure which prohibits appeals as of right to the Court of Appeals from a judgment of affirmance in an action for a personal injury when the decision of the Appellate Division is unanimous.</p>

The facts, so far as material, are stated in the opinion. Restitution under the Code is the restoration only of property or rights which have been lost by the judgment or order, which has been reversed.

<p>1. Eminent Domain — Compensation—■ Review. When compensation for private property taken for public use is ascertained in the constitutional method, what review shall be permitted of the action or determination of the jury or commissioners, within their jurisdiction, rests in the discretion of the legislature.</p> <p>2. Laying out Highway — Conditional Finality op Decision op County Court. The effect of the provision of the Highway Law of 1890 (Ch. 568, § 89), that in a proceeding in imitum for the laying out of a highway, the decision of the County Court, upon an application to confirm, vacate or modify the decision of the commissioners, “ shall be final," is to make such a decision of the County Court conclusive upon the questions of the necessity of the proposed highway and the compensation of the landowner, subject, necessarily, to the limitation that the court had jurisdiction to make it; and, hence, such a decision is appealable only as to questions of the power and jurisdiction of the County Court.</p> <p>8. Appeal—Questions op Power op County Court. On appeal by a landowner from an order of the County Court modifying and confirming, as modified, an order of commissioners directing the laying out of a highway, there can be raised and considered such questions as whether the order of the commissioners contained a sufficient description of the proposed highway, and whether it was competent for the County Court, after having reached the conclusion that the damages awarded by the commissioners to the landowner were inadequate, to determine the amount by which they should be increased, or whether the landowner was not then entitled to have the case sent back for a reassessment of damages by commissioners appointed as provided by the Constitution.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The instrument in suit was imperfect and incomplete, and it was proper to introduce parol evidence to explain or complete it.

<p>1. Bastardy—Charter op Rochester.</p> <p>The principal, if not the substantial, change made in the charter of Rochester in section 843 of the Code of Criminal Procedure, aside from conferring jurisdiction in bastardy cases upon the local court, was to provide that upon the return of the warrant and at any stage of the proceedings, except during the examination and determination, the court could be held by single justice.</p> <p>3. Same.</p> <p>A general provision of the Code, regulating the procedure in this class of cases, is not to he deemed to be modified or changed, in its application to a particular locality of the state, by words of doubtful import, relating another subject.</p> <p>3. Same—Bond—Surety.</p> <p>A surety on an undertaking, given on an adjournment in bastardy pro. ceedings, is not only entitled to insist that he shall not be held liable except according to the very terms of the obligation, but he may also defend upon the ground that the instrument was not given according to the requirements of the statute, and that the officer who took it was without jurisdic. tion.</p> <p>4. Saice.</p> <p>The parties, by their consent or agreement to adjourn the cause from time to time, cannot bind the surety, unless he was so bound in the first instance.</p> <p>5. Same.</p> <p>Neither the statute nor the terms of the bond contemplate or provide for successive adjournments from time to time, for an indefinite period, without entering upon the trial.</p> <p>■6. Same.</p> <p>A bond given in such a proceeding is not to he considered as a contract between the parties.</p> <p>7. Same —Pbocedube.</p> <p>The various sections of the Code of Criminal Procedure, which regulate £>,• the practice in such cases, do not authorize one magistrate to issue the warrant, and another to let the defendant to bail.</p>

This action was brought to recover royalties alleged to be due under an agreement, in writing, made in April, 1888, whereby plaintiffs permitted defendants to manufacture and. sell filters under letters patent owned by plaintiffs, and agreed by them to be assigned to the defendants. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in refusing to charge that the plaintiff did not consider the conversation in 1887 as creating an engagement to marry her. (Storey v. Brennan, 15 N. Y. 526 ; Foster v. People, 50 N. Y. 601; Coleman v. S. A. R. R. Co., 114 N. Y. 613.) The court erred in denying the motion for a nonsuit upon the whole case.

<p>Appeal—New Trial—Newly Discovered Evidence.</p> <p>An order of the supreme court in a criminal action, denying a motion for a new trial upon the ground of newly discovered evidence, made after an affirmance by the court of appeals of a final judgment of death, is not reviewable by the latter court.</p>