Volume 5 — New York State Reporter

<p>1. PrINCTPAL AND SURETY — LIABILITY — Surety ENTITLED TO ALL THE BENEFITS OF CONTRACT GUARANTEED CHARTER-PARTY.</p> <p>One K. and tlie plaintiff entered into a charter-party by which K. secured a steamboat from July to October 1S79, for $9000 to be paid in sis certain payments of $1500 each. On the same day C. (defendant’s intestate) agreed to make good any loss or damage of the plaintiffs for the non-performance of the contract on the part of K. K. paid the first three installments, and when the fourth became due induced C. to give his note for the fourth and fifth, at which time K. gave C. $ 900. Afterwards, K. duly assigned the proceeds of the contact and earnings of the boat for the future to the plaintiff to secure the payment of the three last installments (two of them being covered by the note of C.) K. consented that L. an employee of plaintiff, should take the boat. L. received as earnings of the boat, after paying the expenses, over $5000, being more than the amount of the last three installments. In a suit brought to recover the amount of the note from C. the maker. Held, that C. as surety, was entitled to all the benefits resulting from the use of the charter-party, so that even if the signing of the note was an independent transaction founded upon an independent consideration he was not liable.</p> <p>2. Same — Contract of surety is strictissimi juris.</p> <p>The defendant, by reason of the change in the relations between plaintiffs and K., for the performance of which Coleman was surety and gave the note, was discharged upon the ground that his contract was strictissimi juris and the obligation made by him could not be extended to any other subject, to any other person, or to any other period of time than that expressed or necessarily included in it. It was not a question whether he was harmed by the change to which he had not consented.</p>

<p>1. Evidence — What competent undeb Code Civil Peocedube, § 829.</p> <p>Where the complaint alleged that defendant’s testator received from the plaintiff on a certain day the sum of $ 11,500, at par value in United States bonds for safe-keeping, the suit being for the value of said bonds. Held, that plaintiff was a competent witness under Code Civil Procedure, § 829, to state the exact number of bonds which she then possessed.</p> <p>2. Bailment — When bailee must pat intebest on money.</p> <p>Where money is given to another for safe-keeping, the bailor cannot recover interest unless the bailee has mingled the bailor’s money with his own.</p> <p>3. New teial — Efeect of — Amendments.</p> <p>An order granting a new trial for the erroneous reception of evidence does not obliterate from the record the amendments to the pleadings which have been properly ordered during the previous stages of the case.</p>

<p>Appeal from judgment for §1876.44 upon verdict for plaintiffs, rendered by direction of the court.</p>

ACTION to compel tbe defendant specifically to perform a contract for tbe purchase, by bim, from tbe plaintiffs, of certain real estate in tbe State of New York. Tbe facts are agreed upon and submitted under tbe statute.

<p>1. Acounting — Pledge — Propeety subject to lien fob duties — Accounting FOB PROCEEDS.</p> <p>The plaintiffs seek to procure an accounting of the defendent concerning certain property turned over by them to him, as assignee of H. & S. The assets were largely imported goods, stored in bonded warehouses, the receipts of which had been pledged to secure the firm’s notes to various banks in New York city. A number of these notes were accompanied by the written guarantee of the plaintiffs for payment of each upon the transfer of the note to them, and all right and title which the holders had to the collateral securities. These were paid by the plaintiffs, and the title to the collateral was transferred to them principally, though not wholly, after the appointment of the defendent as assignee. All of the goods pledged by H.S. were subject to the lien of the Government thereon for duty. The goods of ' the plaintiffs and other creditors were placed in defendant’s hands, and most ■of them sold before the bringing of this action. Before sale the defendant was obliged to pay the duties to the Government upon the goods that were in the bonded warehouses. No arrangement was made between these parties as to who should bear the sum payable to the Government for duties. Held, that when the defendant undertook to sell the property and answer Tor the proceeds, he undertook merely to convert it into cash after paying •all the necessary expenses thereof, and that one of the laigest items of expense would necessarily be the payment of the preferred debt to the Government. That the plaintiff had not the right to compel the defendant to account to them for the amount of the duties to the Government which the defendant had advanced.</p>

<p>Appeal from a judgment entered upon tbe report of a referee. Tbe plaintiff and defendant, on tbe 21st day of July, 1881, entered into a written eopartnersbip agreement for tbe purpose of manufacturing,«buying and selling brier-wood, pipes. Among tbe provisions of said, contract was tbis: “ In tbe event of the firm not continuing after December 1,1881, then tbe said Isaac Strauss is to receive tbe amount contributed by him to the capital herein and one third of tbe profits on all goods sold by said firm after August 1, 1881.” The firm entered upon its business about tbe first day of August, 1881, and on or before tbe first day of December following tbe business was discontinued and tbe firm duly dissolved.</p> <p>Tbe plaintiff contributed to tbe. capital stock in all tbe sum of $2,150 and drew therefrom, from time to time, in small sums, amounting in tbe aggregate to tbe sum of $713.18, making a net contribution to tbe funds of tbe copartnership of $1,436,67.</p> <p>No profits were made during tbe continuance of tbe copart- . nership. Tbe referee found in favor of tbe plaintiff in tbe sum of $1,436. 67, with interest thereon from the first day of December, 1881, and judgment was accordingly entered against tbe defendant.</p>

<p>Appeal from judgment entered upon the verdict of a jury rendered in favor of plaintiff at tbe Green County Circuit.</p>

yor of plaintiff at tbe King’s County Circuit and from an order denying a motion for a new trial on the judge’s minutes.

<p>ATTORNEY AND CLIENT — COMPENSATION EOR SERVICES.</p> <p>Where an order to show cause why an attorney should not enter an order of discontinuance in an action, or permit it to he entered, or why another attorney should not be substituted in his place, was opposed by the attorney on the ground that on the settlement of the suit, a sum of money was paid to his client by the other side, a certain portion of which was designated to be applied to the compensation of the attorney, the Special Term who heard the motion, finding that the proof did not bear out the claim, and thatthere existed between the attorney and client no agreement as to the compensation of the attorney, determined upon the value of the services rendered. Upon appeal to the General Term. Held, that the proof did not justify the interference of the appellate tribunal with the determination.</p>

<p>Appeal from a judgment entered on a verdict rendered in favor of defendant at the Queen’s County Circuit, and from an order denying a new trial on the judge’s minutes.</p>

Tbe eviden ce disclosed tbe following facts: In July, 1885, tbe defendant, The Knickerbocker Steamboat Company, was the lessee, under a lease from James S. Remsen and Margaret Wainwright, of a dock at Rockaway Beach, at which its steamboats landed their passengers; and bad an exclusive right to tbe whole of said dock, except so much of it as was occupied by a restaurant or chowder-house, situated near tbe centre of tbe dock.

Appeal from a judgment of the County Court of Duchess County, entered upon a verdict and from an order denying a motion for a new trial upon the judge’s minutes: n

<p>1. CORPORATIONS — CONTRACTS BETWEEN — NOT WITH INDIVIDUAL STOCKHOLDERS. '</p> <p>Wliere as part .of the consideration for the lease hy a corporation of its corporate rights and franchises to another corporation, the party of the first guarantees to the party of the second part, an annual dividend to an amount stated in the lease. Held, that the agreement ran only to the corporation party of the second part, and not to the individual stockholders.</p> <p>2. Same — Voidable contracts binding until avoided.</p> <p>Where an agreement has been entered into between two corporations which is voidable, in the absence of fraud it is binding upon both parties, until some one aggrieved, either one of the contracting corporations or a stockholder therein seeks to avoid it.</p> <p>8. Same — Stockholder cannot being action‘until demand made by HIM THAT THE CORPORATION PROCEED THEREIN.</p> <p>Before the commencement of an action by a stockholder in a corporation which is party to a contract, to compel performance of the contract, a demand must be made by him that the corporation bring the action.</p>

<p>Railroads — Gates at crossing — Duty to persons crossing track in management of.</p> <p>The defendant operates a road in the city of B., which is crossed by a street, and the defendant is by a city ordinance required to keep gates at the crossing. The defendant did operate them. The plaintiff crossing defendant’s tracks on one occasion was struck by the descending gate and injured. Held, that the defendant owed the duty to those who passed its tracks to manage the gates so as to be a protection against railroad trains and also to so raise and lower them as to avoid injury to those who crossed its tracks after a train had passed.</p>

This action was tried before Mr; Justice Cullen and a jury at tbe Orange County Circuit, in June 1886. A verdict was rendered in favor of .the plaintiff for $6000. At the close of the plaintiff’s case and again when the case was closed the defendant moved for a non-suit, and upon the return of the jury moved to set aside the verdict and for a new trial; all of which motions were denied. This appeal is taken from the judgment entered upon tbe verdict, June 24th, 1886.

-an order of Justice BabNABD, changing the place of trial in this .action, for the convenience of witnesses and refusing to send it .back to the county where it was brought.

Appeal by one William R. Potts, a judgment creditor of the administratrix of Henry Breslin (but not a judgment creditor of Henry Breslin), from an order entered on a decision made at Special Term, Kings County, denying a motion made on behalf of said Potts to set aside the above entitled judgment entered in favor of William Broisted (since deceased) upon the confession of said Henry Breslin since deceased.

On the 29tli day of August, 1874, the plaintiff was the owner of the premises in question, subject to two mortgages ; the first for a balance thereon of $1200, the second for $600 ; both executed by her.

This action was originally commenced against the Insurance company to recover money due on a policy. Charles A. Mosher (the intestate whom the present defendant represents) claimed the same sum of money as owner of the same policy, and was substituted as defendant; the original defendant paying the money into court. The cause was placed on the circuit calendar of October, 1885.

<p>1. Municipal CORPORATIONS — Costs in actions against — Chief fiscal officer, Code Civ. Pro., § 3245.</p> <p>Code Civ. Pro., § 3245, provides that costs cannot be awarded to the plaintiff in an action against a municipal corporation, in which the complaint demands judgment for a sum of money only, unless the claim upon which the action is founded, was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation. Held, that the fiscal officer is he who has charge of the fisc, or public treasury, not necessarily the body who directs payments therefrom.</p> <p>2. Same — Actions ex delicto.</p> <p>Held, that there was no reason why this requirement of the statute should not apply to actions ex delicto.</p>

<p>1. False Pretenses — Ex delicto — Wheh action must pail.</p> <p>In an action for obtaining money under false pretenses. Held, tbat if the defendant sold logs to plaintiff and received money on them in good faith, believing that he owned them and had a right to sell them, then he did not obtain the money from the plaintiffs fraudulently, but under mistake of fact, and the action being ex delicto must fail.</p> <p>2. Referee — When ms CONCLUSIONS will not be disturbed.</p> <p>When a referee has reached a determination from all the-evidence, it will not be disturbed by an Appellate Court unless good reason is shown to dissent from the conclusion.</p>

<p>Evidence — Competency of — Code Civ. Pro., § 829 — Partition — Wild.</p> <p>An action of partition involved tlie validity of the will of one P. P.D., the question being as to his competency. The alleged will contained a clause, “ My daughter, H.E.D., now wife of D.J.H., has already received from her share §285.” She was called as a witness of defendants, and this clause read to her. She was asked what she knew about it. Objection was made that she was incompetent to testify under Code Civ. Pro., § 829. The objection was overruled. Held, that the evidence being introduced to show the forgetfulness of the father when he made the will, its relevancy therefore depended on its .being a denial by her of an act said to have been done by him. That the plaintiff having given no evidence as to the fact of the gift, excepting the production of the will, the evidence ivas improperly admitted.</p>

<p>1. Moktgage — Foreclosure and Sale — motion to set aside sale for ALLEGED FRAUD — REMEDY BY ACTION.</p> <p>A judgment of foreclosure has been rendered in this ease, and a sale thereunder took place December 18th, 1880. Two infants were parties, and appeared by guardian ad litem. The proceedings were regular. The mother of the infants bought at the sale and gave a mortgage on the premises which was subsequently assigned to the plaintiff, who has also taken another mortgage from her on the premises.</p> <p>After a lapse of six years, a motion was made by the general guardian of the infants, and the infants themselves, to set aside the sale on the ground of some alleged fraudulent arrangement between the plaintiff’s attorney and the mother, as to the sale. This fraud is denied by the plaintiff. The guardian ad litem does not appear. The papers were served personally on plaintiff without the State. Held, that too long a time had elapsed since judgment and sale to make it proper to set aside the sale on motion. The parties should be left to their remedy by action.</p> <p>2. Same — Service of papers without the state.</p> <p>Held, that it was very doubtful whether the court should hear a special motion, upon papers served on a party without the State.</p> <p>3. Same — Infant parties must act by guardian ad litem.</p> <p>Held, that if the motion is in an action the guardian ad litem must act.</p>

<p>1. Appeal — Application op payments — Cokeection op eeeobs in— Accounting.</p> <p>Where in an accounting, certain errors in the application of payments were not apparent on the face of the findings of the lower court, but appeared from computation submitted by counsel for the respective parties. Held, that they were sufficiently apparent to justify their correction by an Appellate Court.</p> <p>2. Costs — Retaxation op — Appeal pbom obdeb fob, held final.</p> <p>An item having been allowed as costs under an order for retaxation, and a party having appealed therefrom. Held, that he had exhausted his remedies.</p> <p>3. Same — Statute op Limitations — Cubbent Account.</p> <p>As to allowance of costs on special term orders made more than six years before the commencement of this action, it appearing that a judgment or order granting costs was obtained by either party against the other, the amount thereof was regarded by both parties as an additional item in the account current between them. Held, that they were not barred by the Statute of Limitations.</p> <p>4. Amendment — When matteb op poem.</p> <p>After trial, and before judgment, the plaintiff was allowed to amend his complaint to conform to the proofs and the decision ; and the defendant was also allowed to amend his answer, but not to make it inconsistent with the original answer. Held, that the plain purpose of this was to have the pleadings state the issue disposed of, not to allow new ones to be made. The defendant having so amended his answer as obviously to raise an issue not tried, the court struck out so much of his answer as did this. Held, that this was a mere question of form, and in no way involved a substantial right.</p>

<p>1. Evidestoe — Assault and battery — Self-defence — Evidence of circumstances LEADING TO THE ASSAULT RELEVANT.</p> <p>In. an action for damages for assault and battery, the defendant claimed that the injuries to the plaintiff were inflicted by him in defending his life from the assaults of the plaintiff and others. The proof showed that the plaintiff at the request of one of the parties in a fight, intervened at a time when the conflict had ceased either altogether or temporarily, and, in the act of making peace, as he claimed, used violence on one of the parties, and then without explanation laid hands upon the defendant, and.that thereupon defendant stabbed him. The defendant offered to show the strength of one of his former assailants, that a few minutes previous to the intervention of plaintiff, he was attacked by this man and that he was a powerful man. This evidence was excluded on the ground of immateriality, the affray between this man and the defendant having ended. Reid, that the defendant was to be judged in the light of the situation as it stood when the plaintiff accepted it, and that it was necessary to show what had already occurred. The defendant was entitled to show that his desperation was the natural consequence of the injuries done and apparently threatened him.</p> <p>2. Same — Damages — Evidence showing defendant’s belief in his DANGER RELEVANT — COMPETENT EVIDENCE IN MITIGATION.</p> <p>Reid, that the defendant was also entitled- to prove his belief as to his danger at the time the plaintiff assaulted him. His belief or good faith was competent evidence in mitigation of exemplary damages, unless the plaintiff disclaimed any other than compensatory damages.</p> <p>3. Same — Person using force in self-defence only liable for-the use of excessive force.</p> <p>Held, that if the defendant’s version of the case was true he was only liable for excessive force used.</p>

<p>1. Title-Deed — Conveyance.</p> <p>A certain lot marked K. had been for many years in the possession of N. C. who died in 1833 claiming to be the owner thereof. By his will S. C. gave land including the lot K. to D. C. for life, with remainder in fee to plaintiff the son of D. C.</p> <p>D. C. went into possession and so remained until the S., & T. R. R. Co. took possession of the strip in question in 1841, and he remained in possession of the residue until he with his wife executed a deed to plaintiff, dated March 14th, 1859.</p> <p>Plaintiff remained in possession until he executed a deed to C. and M. of the land so conveyed to him. In 1S41 proceedings were taken by the S. & T. R. R. Co., to acquire title to the strip in question. Such proceedings were had in two counties in which the laud was situated, that the property was appraised, and in the one county the money was paid into the bank, to the credit of D. C. and in the other to the credit of D. C. and the plaintiff.</p> <p>The petitioner in the same year went into possession by virtue of a final order in these proceedings. The R1 R. Co., held from 1841 adversely to the title of D. C. In the conveyance Which plaintiff executed to C. and M. in 1865, Lot K. is described by courses and distances. Then follow these words : “ Containing 16 acres, 1 rood, and 13 perches of land exclusive of 1 acre, 1 rood and 32 perches belonging to the railroad.” Held, that a deed is to he construed most strongly against the grantor. That the words “exclusive” etc., did not except the railroad land ; but that they only indicated how many acres were in the lot excluding the railroad land.</p> <p>2. Same — Adverse Possession — Conveyance not void under Champerty Act.</p> <p>Held, That the time of the conveyance of plaintiff to M. & C. the R. R. Co., were in possession claiming under proceedings which purported to convey a fee or title during the continuance of the company. They had however acquired only the life estate of D. C. and during the continuance of that life estate, the plaintiff being the remainderman might convey his remainder without violating the Champerty Act. As the plaintiff was not entitled to possession, the possession of the R. R. Co., was not adverse to him.</p>

<p>1. Executors and ad min istr atoes — Costs against — When Arrowed— REFUSAR TO REFER — CERTIFICATE OF REFEREE — CODE ClY. PRO. § 1S86.</p> <p>Where the plaintiff demands costs in an action against an executor or ad-' ministrator for refusing to refer a claim under Code Civ. Pro., § 1836, the certificate of the referee.before whom the trial took place, that the defendant, before the commencement of the action, refused to refer the claim under the statute is prima facie conclusive upon the court, and is a fact proper to be certified.</p> <p>2. Same — Facts appearing on triar may be referred to in support of CERTIFICATE — REFUSAD A QUESTION OF FACT.</p> <p>Where a case is charged to have been unreasonably defended, the facts which appeared upon the trial may properly be referred to, and in such cases, if the certificate does not state all the facts fully and fairly, they may be shown by affidavits. But where the sole fact controlling the granting of costs against the defendant, depends upon his refusal to refer, the certificate of the referee as to a concession by defendant on the trial ought to be conclusive. The refusal to refer is a. fact and: not a conclusion of law. The evidence of such fact need not be certified.</p> <p>3. Same — When executor is personarry charged — Affidavits.</p> <p>Whether the costs should be charged against the defendant personally, or against the estate he represents, may depend upon other facts appearing on the trial, which may be shown by affidavits if necessary.</p> <p>4. Same — Must appry to court for arrowance of costs.</p> <p>The plaintiff must apply to the court for an allowance of costs before it can be included in the judgment.</p>

<p>Appeal from an order of the County Court permitting plaintiff to perfect his appeal from a judgment of a Justice of the Peace, ete-</p>

<p>Appeal from an order of tlie county court directing judgment and staying taxation of costs.</p>

<p>CRIMINAL TRIAL — EVIDENCE — COMPETENCY—RELEVANCY.</p> <p>It is irrelevant and incompetent on the trial of one for the crime of rape to prove, that at a time prior to the offensecharged in. the indictment he attempted to commit a similar crime.</p>

<p>1. MORTGAGE — ASSUMPTION OP — DEED — PAROL PROOF — WHERE COMPETENT.</p> <p>Where a deed contains no assumption of a mortgage debt or agreement to pay it, parol proof of such a contract does not contradict the deed, and is competent to establish the liability of the grantee to pay such debt.</p> <p>2. Same — Judgment In foreclosure — When rights of defendants as between each other not determined by.</p> <p>A judgment in foreclosure, although determining plaintiff’s obligation to pay, does not necessarily determine the rights of the defendants in the action between each other.</p> <p>8. Costs — When recoverable against one not primarily liable.</p> <p>Where plaintiff sues for the amount of a judgment he has been compelled to pay on account of defendant’s failure to perform his contract with him, plaintiff is not entitled to recover any costs he paid in an effort to avoid the payment of the judgment.</p>

<p>NEGLIGENCE — CONTRIBTJTOBY.</p> <p>The plaintiff, while standing on defendant’s track at the end of one of the ties, bent forward so that the back part of his body protruded toward the rails, and while in this position he was struck by one of defendant’s engines, which was moving at low rate of speed, and injured thereby. Held, that the injury to plaintiff was caused by his own negligence.</p>

At tbe Cortland special term, Aprií, 1886, on demurrer by defendant to the complaint on the ground that causes of action were improperly united in the complaint, the following opinion was delivered: Merwin, J. — There are three counts in the complaint.

An Appeal from a judgment entered on a decision of the Steuben special term dismissing the plaintiffs’ complaint. The action was to establish a mechanic’s lien on a lot of land of which the respondent is the owner, and to foreclose such lien.

<p>An Appeal from a judgment of the Erie County Special Term dismissing tbe plaintiff’s complaint.</p>

An Appeal from an order of the Monroe special term, setting aside a judgment entered against the defendant Wood-worth M. Perry, on default for not answering, and also setting aside an order, substituting James Rachham, as plaintiff, in the action as first above entitled. The plaintiffs were the owners and holders of a note, dated February 25, 1885, for the sum of 1550, made by the defendants, Frank Spike, Geo.

An Appeal from an order made by tbe County Judge of Steuben county refusing to set aside an order previously made by .him for the arrest of the defendant.

AN Appeal from a judgment entered upon a verdict rendered at the Yates county circuit, and from an order of the trial judge denying the defendant’s motion for a new trial, founded upon the minutes. The action is upon an oral contract, entered into between the parties by which the plaintiff agreed to construct a school-house, of wood material, laid upon a stone foundation, for tbe gross sum of $494.

A MOTION by the defendants to set aside the verdict rendered at the Cattaraugus Co. Circuit, in the plaintiff’s favor for $4,878.84, as ordered by the trial judge and for a new trial of the issues.

<p>Appeal from judgment entered upon confirmation of report of referee in a proceeding to determine a disputed claim against the defendant’s testator.</p>

Appeal by tbe executor from a decree of the Surrogate of Monroe County on the judicial settlement of the accounts of such executor.

The plaintiff is a judgment creditor of tbe defendant Asa R. Burton.

<p>1. EXAMINATION OP PARTY BEFORE TRIAL — ORDER FOR — AFFIDAVIT TO SUPPORT— Code Oiv. Pro., §§ S70, 872 — Supreme Court Rule, 83.</p> <p>The affidavit made by a defendant’s attorney to support a motion for the examination of the plaintiff before trial under Code Civ. Pro., §§ 870, 872, states that the defendant is a domestic corporation, and its place of business and office-, the nature of the action and the answer, the opinion of the defendant that the testimony is material and necessary for the defendant and the defense of the action, and then states the grounds of such opinion which are sufficient to show the materiality to the defense of the evidence the defendant seeks to obtain by such examination, and expects to prove by it, and that in order to maintain its defense and prove the allegations contained in its answer, the defendant desires to examine the plaintiff. Held, that these facts were sufficient to bring the application for the order within the statute.</p> <p>2. Same — Deposition Taken under — purpose for which it may be taken.</p> <p>The only purpose for which such an application of a defendant after answer under the statute can be supported, is to take the deposition for use upon the trial, by way of defense, but it is sufficient if the purpose to use the deposition upon the trial is fairly inferable from the statements made in the affidavit.</p> <p>3. Same. — Privilege as to questions — Effect of upon the application FOR THE ORDER.</p> <p>If it can be seen that the examination will legitimately embrace nothing except that as to which he would be privileged from testifying, the application for such an order should be denied, hut the fact that the party may decline on account of privilege to testify, in respect to some, and not to all the legitimate subjects and matters of inquiry is not in the way of granting such an order, as the party may be fully protected by asserting his privilege.</p>

<p>Appeal from a judgment on a verdict rendered at the Steuben circuit, and from an order denying a motion for a new trial on the minutes.</p>

Appeal by the defendant from an order of Erie circuit granting a new trial. The action is brought to recover the amount of awards made by the defendant to plaintiffs by way of compensation for their land, taken by the City for a public avenue pursuant to Laws of 1873, ch. 540. The requisite proceedings were had as required by that and other statutes to acquire the title for such purposes.

<p>1 Will — Probate contested — Determination op surrogate on conflicting evidence — In what case sustained on appeal.</p> <p>Probate of the will of the testator was objected to by the appellants on the ground that testator was of unsound mind, and not capable of making a will, and the instrument presented for probate was not his will.</p> <p>The will was dated August 24th, 1883, testator died the following January, at,the age of 82 or 83 years. At two different times, namely, about harvest time 1882 and in the latter part of May, 1883, deceased had had two attacks of illness, spoken of by his family as paralysis, after which his physical condition was much impaired, his articulation indistinct, and occasionally he failed to recognize acquaintances, either from failure of sight or lack of recollection, and his mind was in all probability to some extent impaired. Held, That if the only inquiry in the case were the abstract question whether at the time of the execution of the instrument propounded as his, will, the deceased had sufficient mental capacity to comprehend its provisions, upon their being fully made known to him, the conclusion reached by the surrogate upon conflicting testimony, admitting it to probate as the will of the deceased, might be regarded as satisfactory.</p> <p>2 Same — Evidence op unsound mind op testator — Burden op proof THROWN ON PROPONENTS.</p> <p>Held, That the evidence being such as to raise a serious doubt as to whether the provisions of the will were so made known to the deceased, as that in his enfeebled and impaired condition of body and intellect, he comprehended their import, the ordinary presumptions flowing from formal execution did not obtain, and that the burden of proof was thrown upon the proponents of the will, to show clearly that the testator fully understood the nature and consequences of his testamentary act.</p>

<p>Appeal from an order oftbe Erie special term denying defendant’s motion for a new trial on a case.</p>

<p>:1., Evidence — Handweiting — What knowledge wild bender a witness COMPETENT TO TESTIFY AS TO.</p> <p>Plaintiff’s intestate, on June 19th, 1860, recovered judgment against this .defendant; in an action on the judgment, defendant pleaded the Statute of Limitations; and the plaintiff relied on letters alleged to have been written ;by defendant, sufficient to take the case out of the Statute. A witness ■called by the plaintiff testified that he had seen defendant’s handwriting; ■two papers were shown him purporting to be letters signed by defendant ■and addressed to plaintiff’s intestate; he testified in substance that he ■thought he knew defendant’s signature; should judge the signatures were his; liad not seen his signature made in a few years; was familiar with it four or ■five years ago; wouldn’t swear positively it was his original signature or a copy, it looked like his; it might be some one else’s. Beld, that these statements were- sufficient to render him competent to testify, provided the signature ■with which he was formerly familiar was genuine. There being no testimony on that point except the general statement that he was familiar with defendant’s signature at that time, it might he that the evidence was sufficient to warrant the inference that the signature referred to by the witness was known by him to have been the genuine signature of defendant, and as the competency of the witness was for the court and hot the jury, the ruling might be upheld on that ground. That the omission of defendant to cross-examine the witness on his statements, might be regarded as strengthening the inference as to the genuineness of the signature.</p> <p>2. Statute op Limitations — Acknowledgment op debt barred by— What necessaky to bevive debt.</p> <p>The letters were addressed to plaintiff’s intestate and referred to the claim in suit, but contained no express promise to pay the debt. By one, however, defendant acknowledged himself to be in debt to plaintiff’s interstate, and said that whenever it might be possible he should relieve himsélf of such debt. Held, that an acknowledgment was not enough to renew or continue the debt, unless it were evidence from which a promise to pay might be inferred, and to raise that inference, the acknowledgment must be unconditional, and one which implied a willingness to pay. That at most a conditional promise to pay when defendant was able might be inferred.</p> <p>3. Same — Conditional pbomise to pay — Happening op condition, a QUESTION POB JURY.</p> <p>Some two years after the date of the letter, defendant’s mother died, leaving a will by which a part of her estate was to be divided among her five children equally; that the executor paid defendant’s share to his wife on being notified that it belonged to her. Held, that it was a question for the jury whether a promise could be implied, and if such promise was conditional, whether the condition had happened.</p> <p>4. Vebdict — When eebob to direct.</p> <p>At the close of plaintiff’s evidence defendant not offering any proof, the court directed a verdict for plaintiff. Held, that this was error, that it was for the jury to say, under proper instructions, whether the slight evidence as to handwriting satisfied them that the letters were written by defendant and whether the proof established a promise to pay which revived or continued the debt:</p>

<p>1. Lotteries — What is within meaning of, 1 R. S. p 667, § 32 — action against.</p> <p>The Revised Statutes (1 R. S. p. 667, § 32) provide that any person who shall purchase any share, interest, ticket, certificate, of any share or interest or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest in any ticket or' purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or things in action which he may have paid or delivered in consideration of such purchase, with double the costs of suit. Defendant was engaged in selling lottery tickets and policy tickets or policy numbers in lotteries, the purchasing, of which was termed “policy playing.” The purchaser in consideration of a sum of money paid by him, was permitted to select certain numbers which if drawn in the lottery designated, entitled him to a larger-sum. Held, That this species of gaming or dealing in chances, was in the nature of a lottery and within the prohibition of the Statute.</p> <p>2. Same — Action may be brought by person dealing through an AGENT.</p> <p>In most of her dealings with defendant, plaintiff acted through her husband who had authority from her to invest her money for the purpose. Held, that she might recover therefor. That the agent had no right of action.</p> <p>3. Same amount must be shown with reasonable certainty.</p> <p>Held, That in order to recover under the Statute the precise sum and exact date of each payment need not be proved, that it might be enough to show the aggregate amount paid during a specified period, but such amount should be proved by satisfactory evidence with reasonable certainty.</p> <p>4. Referee. — Judgment entered upon report of — When reversed on QUESTION OF FACT ORDER SHOULD SO STATE.</p> <p>In a case when an appeal was had from a judgment entered on the report of a referee, Held, that in event of the reversing of the judgment on a question of fact the order of reversal should so state.</p>

<p>1. CONTRACT OP EMPLOYMENT — CONSTRUCTION OF — BREACH — DAMAGES.</p> <p>Plaintiff was employed by defendant by a special contract in the business of selling for him, organs, etc., and obtaining for him customers for the same. By the contract defendant agreed to pay plaintiff for his services a sum “ equal to one-third of the net profits resulting from the business.” . . . “ Meaning by the term, ‘ net profits ’ as ‘ used therein ’ one-third of the entire proceeds of the business. . . After deducting the entire cost and expense of said business.” The sales in a large part were made on the instalment plan upon monthly payments, the title remaining in the vendor until full payment of the purchase price. Plaintiff-was discharged before the end of the term of his employment, and at the time there remained unpaid on such installments several thousand dollars. In an action- to recover damages for breach of the contract of hiring.</p> <p>Held, That the sums unpaid on such conditional contracts should be included in fixing the amount of the net profits.</p> <p>2. Same — Bad faith — Will not be presumed.</p> <p>Held, That if plaintiff negligently, or in bad faith, sold to irresponsible persons, he was liable to defendant for his damages as thus caused, but as no claim to recoup on that ground was made, no such cause of action should be presumed..</p>

<p>.1. CONVERSION — Promissory notes — Decision op higher court conclusive ON A LOWER COURT WHERE THE SAME STATE OP FACTS EXIST.</p> <p>This action was brought to recover damages for the conversion of certain promissory notes executed by defendant to testator. Defendant by his answer admitted execution and delivery of the notes to the deceased; and alleged that before and at the time of her death he was rightfully in possession of them, they being his property and not that of thedeceased. Plaintiff in his own behalf testified that the notes in suit were, for some time previous to his mother’s death, kept inatrunk beneath the bed in the room occupied by her and that he saw them there on the morning before she died, and .that on examining the trunk on the following morning, he found that the motes had been abstracted. Testimony was given by another witness that the notes were afterward fouud in defendant’s possession who, upon ■demand made,- refused to surrender them. Plaintiff'also testified to facts .showing the• presence of defendant in the room where the notes were kept ■during the last hours of his mother’s illness, and the opportunity thereby afforded him to obtain unauthorized possession. of them. Evidence substantially the same 'having been recounted in the opinion of the court of appeals on a former trial of the ease and* that court having held, that the ■evidence tended to establish ownership- of the notes by the testatrix by ■creating a presumption arising from the fact of possession, and by inference, ■to controvert the probability that the defendant came rightfully, into possession of the notes by means of a prior disposition of them by her. Held, tha t the decision of the court was conclusive on the question.</p> <p>2. EVIDENCE — TRANSACTION WITH DECEASED — CODE ClV. PEO., § 829.</p> <p>Defendant in his own behalf testified that the notes came into his possession a week before the death of the deceased, his sister was present at the time, she called him into the room where deceased was lying sick. He was then asked to state what occurred in reference to any transaction between himself and deceased, concerning the notes, after he went into the room. Plaintiffs counsel objected that the question was improper under Code Civ. Pvo.,§ 829. Defendant’s counsel stated that he offered the testimony on the ground that the executor had testified in reference to the matter, and that he allowed the opposite party to come in and testify. The objection was sustained. Held, that the question'and offer were broad enough to include evidence of a gift of the notes to the witness by deceased, or taking of them by him with her consent on the occasion referred to, which was prior to the time when plaintiff testified that he saw the notes in the trunk. That the objection was rightly sustained. That while testimony might be competent to repel an inference arising from a fact testified to by the opposite party, that offered for the purpose of establishing an affirmative defence resting in a transaction not adverted to in the testimony of the opposite party, was not competent.</p> <p>3. CHARGE TO JUEY — EVIDENCE NECESSARY TO PBOVE A GIFT WHEEE THEBE ABE CIRCUMSTANCES OF SUSPICION.</p> <p>Held, that a charge delivered to the jury by the trial judge that the defendant in order to hold the property by virtue of a gift must establish it beyond a suspicion, was proper. That where there are circumstances attending tlie alleged gift which reasonably excite suspicion as to whether there was a gift in fact, the proof must be such as to remove the suspicion.</p>

<p>Appeal from a judgment on a verdict rendered at tbe Cattaraugus circuit.</p>

<p>1. ATTORNEY AND CLIENT — CONTRACT FOR SERVICES — SPECIFIC PERFORMANCE — When court of equity will grant relief.</p> <p>Action was brought by the plaintiff as assignee of a contract for its specific performance. The contract was made by W. H. Platt and his two brothers as executors of the last will and testament of their deceased father. The contract by its terms purported to assign to W. R. Martin, an attorney and counsellor at latv, one half of all the claim and demand of the executors against G. W. Platt, and of an interlocutory judgment at the date of the contract recovered against the said G. W. Platt, in an action pending against him in favor of the executors, and prosecuted by Martin as their attorney. The instrument purported also to assign the property covered by the judgment. The consideration of this assignment was services already rendered, and which might thereafter be rendered in any action which had been theretofore brought by the executors to set aside conveyances of real and personal property made by their father to G. W. Platt, and in such other suits or proceedings as might be instituted by the executors to recover the property covered by such transfers. The consideration for the assignment to Martin by the executors was further enlarged by a statement .in the contract describing the difficulty of the case, the labor W. R. Martin had performed, the money he had expended, and “ the measure in which the recovery must depend on his knowledge, skill, and exertions,” and the confidence of the executors in his faithfulness and ability. The contract also recited that the compensation fixed'by it was “for his services and the services of such counsel as he has engaged or may hereafter engage in the case,” and was to be one half of the whole recovery against G. W. Platt. The services and engagement of Martin were to be continued until “ the termination of the controversy.” Pending these proceedings, which continued for ten years thereafter, and in 1875 the contract in question was assigned, or attempted to be, by W. R. Martin to his father R. W. Martin. No notice of this assignment was given to the executors. On the 1st day of March, 1879, R. W. Martin assigned the contract to one Wyckoff. This last assignment was made to secure tile sum of §2,000 borrowed by W. R. Martin of Wyckoff for his own needs and use. Notwithstanding the assignment theretofore made to Wyckoff, R. W. Martin, on the 3rd day of April, 1879, executed another assignment of this contract to his son Edwin N. Martin, the plaintiff in this action. Held, that the granting of relief of the nature of that invoked in this action is not a matter of course in all cases, nor a matter of absolute right to either party to a contract. That it rests in the discretion of the court to be exercised upon a consideration of all the circumstances of each particular case. That this discretion should only be exercised in the interest of justice and equity. That where a compensation for the breach of a contract, or for its enforcement, is adequate and practicable, the aggrieved party is turned over to his action for damages.</p> <p>2. Same — When thebe is No action in equity.</p> <p>Meld, that if the assignee of Mr. Martin has any claim to money his remedy at law is ample, and, if well founded, he can be fully satisfied by a judgment for damages. That it will not be enforced in equity through an action for specific performance of the contract.</p> <p>3. Same — When a contbact can be specifically enforced.</p> <p>Held, that a contract to be specifically enforced by the court must be mutual, such that it might, at the time it was entered into, have been enforced by either party against the other That when from the nature of the contract or any other cause, the contract is incapable of being enforced against one party, that party is incapable of enforcing it against the other.</p> <p>4. Same — When an agreement ob contbact is assignable — When non . ASSIGNABLE.</p> <p>The general rule is that the benefit of an agreement may be assigned in equity, and that the assignee can enforce specific performance of contracts of which courts of equity would decree perormance at the suit of the assignor. The exception to this rule is found in cases of contracts for personal services where learning, skill, special knowledge and confidence, are involved. Where such skilled services are to be rendered they can only be performed by the contracting party himself, and the benefits of such contracts are incapable of being assigned.</p> <p>5. Same — Party — Equitable belief is denied to a mebe nominal party.</p> <p>Where a court of equity is satisfied that the person prosecuting the suit is not the real owner of the cause of action, but is a nominal party only, it may properly deny equitable relief, which it has the discretion to grant or withhold.</p> <p>6. Same — Breach of contract.</p> <p>M., the assignor, received' and applied to his own use large sums of money, the fruits of the litigation, long before its close, and omitted to pay the counsel engaged by himself, leaving the parties to bear this burden. Held, that his conduct in receiving these moneys to his own use before the close of the litigation, and before his professional services were ended, and his omission to pay the counsel engaged by himself, was clearlya breach of the agreement on his part, if the contract was considered by the parties to be still in force, and to afford a measure of compensation for his services and liabilities.</p> <p>7. Same — Party attempting to enforce contract must show performance ON HIS PART. .</p> <p>A party to a contract, claiming to have it decreed to be specifically performed, must in good faith, and truly, perform all the obligations imposed upon him by the terms of the contract, and a failure on his part in any material point is of itself a sufficient ground for withholding equitable relief.</p> <p>8. Same — Agreement between attorney and client — When specific PERFORMANCE WILL NOT BE DECREED.</p> <p>Agreements of this nature between an attorney and clients, were at one time disfavored by statute and the judgment of the courts. Now if they are understandingly and fairly made, they will be upheld. But they never will be decreed to be specifically performed in the way herein demanded, if the attorney has failed to discharge the obligations which he has assumed.</p>

MOTION by defendant among other things to set aside the taxation of costs in favor of the plaintiff by the clerk of Onondaga county on the ground that they were not entitled to costs because their allowance was in the discretion of the court, and they were not allowed upon the determination of the action.

Action by tbe heirs-at-law of one Alexander Lewis, lately deceased, for the partition of certain real estate, of which, in the complaint, it is alleged he died, seized and possessed. The defendant, Florence Joiner, is made defendant, not as an heir-at-law, or the owner of the premises or any part thereof, but simply as party in possession, having entered under the deceased in his lifetime.

The petitioners, Prosper D. Mumford, as administrator, etc., of tbe estate of Matilda Winsor, and several other heirs-at-law, of said Matilda, presented their petition and asked for ah order directing Charles Gr. Baldwin, as general assignee of Dow, Short & Company, to pay certain moneys alleged to have been held by said assignors in trust for said petitioners out of the assigned estate before the creditors are paid, etc.

In 1879, Tbe Sir Roderick Dbu Gold Mining Company was organized nnder the laws of the State of New York, (Laws 1848, chap. 40,) as a mining company; carrying on business and having all of its mining machinery at Deadwood, Dakota. On May 6th, 1880, an annual meeting was held at which the defendants and others were elected trustees for the ensuing year. In September, 1880, judgment was entered against the company and execution issued.

<p>1. Practice — Interpleader — When action can be maintained.</p> <p>An action of interpleader can be maintained in those cases only where there is a serious doubt as to the question involved.</p> <p>2. Same — When cannot be maintained.</p> <p>An action of interpleader cannot be maintained where the assignee and attaching creditors do not claim the same debt or dirty from the plaintiff ; nor in a voluntary assignment where it is clear that as against the attaching creditors, the assignee has good title to the money, etc., in the hands of the plaintiff.</p>

Certiorari proceedings were brought under chapter 269 of the Laws of 1880, to review assessments for purposes of taxation in the years 1882 and 1883, on certain premises in the City of New-York, situated in East Forty-sixth and East Forty-seventh streets (Windsor Hotel block), and in the Bowery. The lots in the Windsor Hotel block were assessed in each year at $17,000, and the Bowery property at $12,000.

<p>Parent AND Child — Rights of parents to custody of Child — Poweb of Legislature.</p> <p>The Legislature has no power to enact that merely because a child under sixteen years of age is found in the street without attendance, and because a magistrate should choose to characterize this as an improper exposure, a parent could.be deprived of his child ; neither is there any power to deprive a parent of the custody of his child without notice and an opportunity to be heard.</p>

<p>Motion for mandamus to compel the granting of an excise license to the New York Academy of Music.</p>

An action to establish the existence of a lost stipulation alleged to have been made in an action pending in the supreme courtwhich provided for the discontinuance of two actions in the Marine Court,of the city of New York, in one of which a judgment had been entered in favor of Anna Maria Deen as plaintiff against the said Wilson as defendant, from which an appeal had been taken, and the other of which of the same title was pending in that court undetermined.

<p>1. ARREST IN CIVIL ACTION — WHEN NOT ENTITLED TO DISCHARGE UNDER Laws 1886, chap 672 and 648 — Code- Oiv. Pro., §§ 111, 575 — Subdivision 3rd.</p> <p>Where the defendant was .arrested in a civil action, and upon-such arrest gave the sheriff an undertaking pursuant to Code Civ. Pro., §§ 573, 574 and 675, and was thereby discharged from such arrest, and the undertaking was under the 3rd subdivision of § 575, and to the effect that the defendant would at all times render himself amenable to any mandate which may be issued to enforce final judgmerit in the action, Held, that as he is not imprisoned within the prison walls of a jail nor within jail liberties of any jail, he is not in fact nor in contemplation of law, a prisoner, and the provisions of chapter 672 and 648, Laws 1886, in relation to imprisonment of persons in civil actions, and tlieir discharge therefrom, have no application to his case.</p> <p>2. Same — Person who is under bonds to appear can become prisoner CONFINED WITHIN JAIL LIBERTIES.</p> <p>That if defendant is dissatisfied with the kind of liberty he has under this undertaking, he can at any time be imprisoned within the jail liberties by a surrender to the sheriff, and then giving the undertaking for ' the jail liberties ; and after submitting to such restrictions for six months will be entitled to be discharged under Code Civ. Pro., § 111.</p> <p>3. Same — When not entitled to discharge under Code Civ. Pro., § 572.</p> <p>Where the defendant has not been and is not imprisoned in the action though a judgment was rendered against him (under which he could be imprisoned) and from which he has appealed, Held, that defendant is not entitled to be discharged under Code Civ. Pro., § 572. because the plaintiff has forborne to imprison him, awaiting the decision of the appeal.</p>

<p>Will — Testamentaby capacity — Undbb influence — When the pboBATE OF A will WILL BE BEVOKED — CODE ClV. PBO., § 2622 AND 2652.</p> <p>Where the decedent at the time she executed her alleged will was more than eighty years old, and lived in a tenement consisting of two rooms, which she rented of one S. Her only household associate was one McC., a woman but ten years younger than herself, who assisted in domestic affairs, and after decedent fell ill acted as her nurse and attendant. The day the alleged will was executed decedent was very ill and weak, and the physician who attended her, just before the instructions for the making of her will are alleged to have been given by her, told S. and his wife that there was no hope of her recovery. While she was in this moribund condition she is alleged by the wife of S. to have asked S. to bring to her sick room a notary who could make a will, and to have said to S. “ I am going to make a will now to you.” Thereupon S. found a notary who returned with him, and the will was then and there drawn and executed, giving all her property, amounting to over $3,500 except $200, to S. who proposed the will for probate, decedent dying within ten hours thereafter. Held, that there was such serious doubt both as regards the testamentary capacity of decedent, and as regards her freedom from undue influence, that the probate of the paper alleged to have been a will must be revoked under Code Civ. Pro., §§ 2622 and 2652.</p>

<p>1. Executors and admt stratoes’ accounts — Objection to — When SHOULD BE MADE.</p> <p>Objection to the form of an executor’s account should he made before the submission of the account to a referee in order to charge the executor personally with the expense of reformation subsequently found necessary.</p> <p>2. Same — Form op account.</p> <p>The account should be explicit and in it the corpus of the estate should be separated from the income.</p> <p>3. Same — Commission of executor — Interest.</p> <p>An executor is entitled to a single commission only upon the corpus of the estate, and is not entitled to retain such commissions before their allowance by the surrogate, and he is chargeable with interest upon commissions improperly retained.</p> <p>4. Same — United States income tax.</p> <p>An income tax due the United States Government at the time of testator’s death is properly chargeable to the principal of the estate.</p> <p>5. Same — Executor chargeable with tax improperly paid — (u. S. laws, June 30th, 1864.)</p> <p>Where an executor in good faith paid the legacy tax to the United States provided for by Laws U. S. (§§ 124 and 125, Act of June 30th, 1864, and the amendments thereto), when the law had been repealed he will be personally charged with the amount so paid.</p> <p>6. Same — Counsel fees, when allowed.</p> <p>An executor who has employed and paid counsel for legal services in the course of his administration should not be reimbursed for such payment out of the funds of his testator’s estate, unless a proper regard for the interest of the estate seemed to make such services necessary at the time they were invoked.</p>

<p>1. Executors and Administrators — Accounting voluntary — Code Crv. Pbo., § 2729.</p> <p>Where after the expiration of a year from the issuance of letters testamentary to an executor, but before a year had elapsed since the issuance of letters to a co-executor, and before the lapse of a year and a half since the issuance of letters to an executrix, a petition was filed by him for the judicial settlement of the accounts of himself and associates, and a citation issued whereby the co-executors and executrix were required to attend the judicial settlement of his account as one of the executors, the petition was granted so far as it related to the settlement of his own account.</p> <p>2. Same — INVoetottart — Code Civ. Pro., §§ 2’724, 2723, subd. 4.</p> <p>The petition was refused so far as it related to the account of the co-executor because a year had not elapsed since the issuance of letters to him, and as far as it related to the account of the executrix because a year and a half had not elapsed since the issuance of letters to her, and the circumstances were not'such as in the judgment of the court warranted a compulsory accounting.</p>

The petition of the executor of Motz asked that Edgar M, Crawford be required to surrender to him certain bonds which the said Crawford is alleged to hold unlawfully and in violation of the right of the petitioner, and that the said bonds belong to the estate of the decedent and that the petitioner is entitled to the possession thereof.

<p>1. Wilt. — Revocation of peon ate — Costs.</p> <p>Upon the denial of a petition for the revocation of the probate of a will the question of charging costs to the defeated contestant addresses itself to the sound discretion of the court.</p> <p>2. Same — When costs not chargable against contestant.</p> <p>A contestant is not chargable with costs where his resistance is based upon what may seem to him proper and necessary in the interest of justice, and for the due protection of his rights.</p>

<p>1. Will — Execution of in foreign State — When entitled to peobate here — Code Civ. Peo., §§ 2611-2994</p> <p>If a will or testamentary paper is shown to have been executed in conformity witli tiie laws of this State, it is, so far as regards the formalities of execution, entitled to probate wherever and by whomsoever executed, whatever the nature of the property, the disposition of which it seeks to effect, and wherever such property may be situated.</p> <p>2. Same — Provisions of § 2611 and § 2691 not inconsistent.</p> <p>There is no inconsistency between § 2611 as thus interpreted, and § 2694 which declares that “ the validity and effect of a testamentary disposition of personal property situated within the State are regulated by the laws of the State or county of which the decedent was a resident at the time of his death.</p> <p>3. Same — Peobate of will.</p> <p>A will may he entitled to prohate although all its dispositions of property may be discovered to be invalid.</p>

HeNey Smith died December 1st, 1884. By the first clause of bis will, executed June 19tb, 1882, be gave to bis wife iu lieu of dower, bis homestead, at Cobleskill, during ber widowhood, and thereafter to bis son Henry, and also gave in the same way the library, furniture and property therein, with right to the wife to use up all household stores. By the second clause he gave to his mother during life the use of the. house and lot in Cobleskill, where she resided.

<p>1. Will — Testamentary capacity, proof of — Undue influence.</p> <p>If decedent was a free and capable testatrix lier will must stand, even though her sole aim in bringing it into existence was to cut off her relatives from receiving the property, which, in the absence of a will, they would take by virtue of the Statute of Distributions.</p> <p>2. Same — what influence proper.</p> <p>A testamentary paper will not be vitiated because the testatrix evidently allowed herself to be controlled by the influences arising from gratitude and affection.</p>

<p>PROCEEDING for settlement of the accounts of trustees and distribution of estate.</p>

<p>Ah Appeal from a judgment of the Wayne county court reversing a justices judgment in the defendant’s favor.</p>

AN appeal from a judgment entered upon the report of a referee in an action of replevin for a quantity of household goods, a piano, and for some books used in a family library, The plaintiff claimed title to the piano and the library and .some few articles of the household furniture by a gift from her deceased father, George W. Crane, and to a portion of the other items as tbe administratrix of tbe estate of ber deceased mother, Mary D. Crane.

Appeal by the plaintiff from judgment entered on report of referee.

The action was brought to require the application of the value of one of two parcels of land upon a mortgage held by the defendant, William F. Wendt, on both parcels. And the plaintiffs obtained an injunction order restraining the defendant from bringing any action upon or attempting to enforce the bond and mortgage against the other parcel and the plaintiffs.

<p>1. EXECUTORS AND ADMINISTRATORS — ACCOUNTING — PETITION FOR— Waiver of objection that petitioner has no interest.</p> <p>Where a person alleging that intestate’s estate was indebted to him presented a petition that the administrators be cited to account and be decreed to pay the debt alleged to be due him. Held, That one of the administrators having instituted proceedings for a judicial settlement of their accounts, and the other having in those proceedings rendered an-account, this petitioner, for aught that appears, having been made a party to those proceedings and no objection having been taken that he was not interested, the objection that he had not an interest in the estate had been waived by the administrators.</p> <p>2. Same — Note given by administrator fob claim against estate is a PERSONAL OBLIGATION.</p> <p>A note given by an administrator for an alleged claim against the estate of his intestate, though signed by him as administrator, is his personal obligation, It does not bind a co-administrator. Persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear on them.</p> <p>3. Same — Claim against estate by — When may be presented.</p> <p>An administrator having given his note for a claim against the estate of his intestate, is entitled to have the same allowed to him on his accounting and may bring in the claim as a credit against the amount of assets with which he is chargeable whenever there, is an accounting, although more than six years after the date of the payment.</p> <p>4. Same — Testimony of, that payment was made at request of next OF KIN, WHEN COMPETENT.</p> <p>Where an administrator makes payments from his intestate’s estate and receives vouchers therefor, his testimony that such payments were made at the request of the next of kin is competent.</p> <p>5. Same — Payment of proper claim prior to appointment — Appointment RELATES BACK.</p> <p>When a payment made before the appointment of the party making it as administrator is a proper charge against the next of kin, the subsequent appointment relates back and gives it the- same effect as if it had been made after letters granted.</p>

<p>Appeal from the judgment entered upon a verdict at the Genesee circuit, and from an order of tlie Erie special term, denying motion for new trial.</p>

Appear from judgment entered on verdict of Livingston circuit and from order denying motion made on minutes for new trial. The action is brought to recover the amount of money loaned by the plaintiff to the defendant for which he gave his promis sory note at three years for $1,850, which matured April 9th and 12th, 1882% This note about the time of its maturity was surrend ered by the plaintiff to the defendant.

<p>' An Appeal from an order of the Monroe special term denying the plaintiff’s motion for a new trial founded npon a case and also on the. ground of surprise and newly discovered evidence.</p>

<p>Pbactice — Opening default — Effect of refusal of application to POSTPONE TRIAL.</p> <p>The right to set aside a default is not affected by the fact that the trial court refused to postpone the trial. The motion not being regarded as an appeal from that order.</p>

<p>1. Peactice — Notice to produce — Secondary evidence oe. written instrument.</p> <p>Tliis action was brought to recover a balance of account for work and labor performed, and material furnished, at defendant’s request.. Plaintiff in his own behalf had testified to conversations with defendant and his son and said that he made and gave the paper giving dimension of the work to defendant’s son. Plaintiff asked defendant to'produce paper of which he had served notice, and defendant declined so to do. Plaintiff being asked if that was the paper which he had given notice to produce, defendant objected to the question as immaterial and irrelevant, and the objection was overruled and exception taken. Held, that this was no error.</p> <p>2. Testimony — Objection to admission of — When must be taken.</p> <p>Plaintiff having testified to conversation between defendant’s son and himself. Held, that defendant had no right to sit quietly by and allow testimony to be given and then object to the “ foregoing” testimony.</p> <p>3. Cross-examination — Error to refuse to allow, as to items of paper sworn to on direct examination.</p> <p>Plaintiff having testified that the items of labor and materials charged for were contained in a paper marked exhibit A., and this paper having been put in evidence upon cross-examination defendant asked as to each particular item therein contained, and upon plaintiff’s objection to such questions being sustained, excepted thereto. Held, that this was error and a new trial should be granted.</p>

<p>1. Practice — Appeal prom Justice’s Court — Service op notice on attorney.</p> <p>At the close of the trial of an action in a justice’s court plaintiff stated in the presence of the defendant and his attorney that the case -would be appealed, and defendant told his attorney to attend to it. And said'attorney before he was served with the notice of appeal, in reply to plaintiff’¿''inquiry, gave him a notice of retainer, and appeared for defendant therein on the appeal. On a motion to sit aside the judgment of the county court on the ground, that no notice of appeal was served upon defendant, Held, that the motion was properly denied, and that the defendant was guilty of laches in .waiting until after the decision of the county court.</p> <p>2 Same — Attorney — When liable to client — Discretionary order.</p> <p>Whether the defendant is not confined to his remedy against the attorney if he has been prejudiced by his action, there being no evidence that he is insolvent, and whether the order of the county court is one restingin discretion and thereforemot appealable. Qitcere.</p>

<p>Appeal from a judgment of the supreme court, general term, first department, affirming a judgment entered upon a verdict in favor of plaintiff at the New York county circuit, in an action for libel.</p> <p>For a further statement of facts, see dissenting opinion of Daheorth J.</p>

<p>Appeal from a judgment of the Supreme Court, General Term, First Department, affirming the decree of the Surrogate’s Court of New York County which judicially settled the accounts of Mary J. Morgan as Executrix. The opinion sufficiently states the case.</p>

<p>1. BANKRUPTCY — SALE BY ASSIGNEE WITHOUT ORDER OP COURT.</p> <p>Whether under the bankrupt law of 1841, a sale of a bankrupts’ real estate, by tne assignee in bankruptcy, without an order of the court, authorizing it, is absolutely void. Quaere. (Smith v. Long, 12 Abb. Ñ. C. 113, criticised)</p> <p>2: Contract — for sale of land — Specific performance — when title DEFECTIVE — ASSIGNMENTS.</p> <p>The interest of a party in an unexecuted contract for the sale of land is real estate, and at his death passes as such to his heirs and not to his administrators; and the heir alone can assign and convey such interest.</p>

<p>1. MARINE COURT OF NEW YORK CITY — NOT A COURT OF RECORD BETWEEN 1849 and 1872.</p> <p>The Marine court of the city of New York (now the city court) was not a court of record in the legal sense of the term from 1849 until 1872.</p> <p>2. Same — Appear — Direct to court of appeals — Const. N. Y. § 22, art. 6.</p> <p>Section 22, article 6 of the State constitution applies only to courts of record, and was intended to embrace only courts of record which were established in cities at the time of the adoption of article, 6 viz: in December 1869. It therefore excluded the Marine court from the operation of the jower therein given to the legislature to authorize appeals direct to the court of appeals.</p> <p>3. Court of record — Wiiat constitutes — Clerk and seal</p> <p>To constitute a court of record in a legal sense it is not sufficient that the vcourt should have a clerk and a seal.</p>

<p>MOTION for reargument.</p>

<p>Appeal — Record oh — Stipulation as to.</p> <p>Upon an appeal to the general term of the city court of Brooklyn from an order made at the special term of that court granting a motion made by the defendant for a new taxation of costs, a memorandum containing an extrac't from the judgment and the defendant’s costs as taxed by the clerk was endorsed by the attorneys for the parties “ approved and assented to as and for papers on appeal.” This order having been affirmed by the general term it was further appealed to the court of appeals. The papers referred to in the notice of appeal and in the special term order were not before the court of appeals. Held, the appellant being the same as in the court below the memorandum might he presumed to contain all considered by her counsel as material to present the question intended to he raised, and that showing nothing which alone or with the other matter in the appeal book made the appellant’s objection intelligible, the order appealed from should be affirmed,</p>

<p>1. SUMMARY PROCEEDINGS — PETITION — JURISDICTION — CODE ClV. PRO., § 2235.</p> <p>A precept was issued upon a petition in summary proceedings which was not verified and upon the return day the defendants being both personally served one of the defendants appeared but the matter was held by consent to a future day when the defendant T. again appeared and objected to the jurisdiction upon the ground that the petition was not verified. Held, that before a party is entitled to a precept, Code Civ. Pro., § 2235, provides that the applicant must present to the judge or justice a written petition verified in like manner as a verified complaint in an action brought in the supreme court, and that a petition not verified though complying in other respects with the statute requirements will not be sufficient.</p> <p>2. Same — Proceedings in derogation of common law -vghts.</p> <p>In proceedings in derogation of common law right'., s itutory directions must be strictly complied with, otherwise they rye ab?obi!.t ly void.</p> <p>8. Same — Unqualified appearance — Effect, of.</p> <p>The appearance of the defendant T. upon t.he return day without stating or qualifying his appearance was a general ; opearance and as far as a general appearance can bind him h.-* would be b Jund by it.</p> <p>4. Same — Adjournment by cgvjent — Effect of, on rights oj t vrties.</p> <p>The case being held beyond the return day vas in the same, positien -as. upon the return of the precept and all rights were reserved to the parties which they had upon the return.</p> <p>5. Same — Justice’s courts — Objection — Practice.</p> <p>In justices’ courts, it is a well settled rule that a party may object to a proceeding and upon the overruling of his objection file his answer and proceed with the trial.</p>

<p>1. PleadiNgs — Jurisdictional pacts —Buffalo city charter, § 4, tit. 2, § 16 AS AMENDED BY LAWS 1885, CH. 181. '</p> <p>The Buffalo City Charter provides for the election of a justice of the peace of the twelfth ward, and after making general provision as to his powers, says further that in civil actions and proceedings he shall have jurisdiction only where the defendant is a non-resident of the City of Buffalo at the time the action or proceeding is commenced. The complaint did not allege the fact of the defendant’s non-residence, upon the defendant’s contention that it was a jurisdictional fact which should he pleaded and proved to authorize a judgment in the plaintiff’s favor, it was held that the contention of the defendant could not be maintained.</p> <p>2. Same — Appeals — Code Civ. Peo. § 3057.</p> <p>If the defendant was not in fact a non-resident, then the issuing and service of the summons could not give the justice jurisdiction, and judgment in favor of the plaintiff was erroneous, and as the proceedings before the justice showed nothing on the subject, the caséis within the Code Civ. Pro. § 3057, which provides that where an appeal is founded upon an error in fact in the proceedings not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or in its discretion upon examination of witnesses or in both methods</p>

<p>1. Dower — Eight to, before assignment is a chose in action.</p> <p>The right of a widow to dower until it is assigned, is a mere chose in action which is not the subject of a sale upon execution.</p> <p>2. Supplementary proceedings — receiver — title to property of judgment debtor — Code Civ. Pro. § 2468.</p> <p>A receiver appointed in supplementary proceedings becomes vested with all of the real properly of which the judgment debtor was seized at the time of his appointment. And the right of dower of a widow though not ad-measured is the absolute right which vests in the receiver.</p>

<p>.1. EVIDENCE — MUST CORRESPOND WITH THE ALLEGATION'S.</p> <p>In an action brought to recover damages for injuries suffered by the plaintiff while in the defendant’s employ as an engineer upon one of its locomotive engines, the complaint alleged that the neglect consisted in furnishing a defective engine. Held, that evidence that the fuel used was not of safe or proper quality, was improper.</p> <p>2. Pleadings — Object oe weitten pleadings.</p> <p>Held, That ’the object of written pleadings is to frame the issues so that the parties may know what questions are to be tried, and make preparation therefor, and that this purpose is frustrated if on the trial the party is suffered to substitute other and different issues for those so framed.</p>

This action was brought by a judgment creditor to set aside a conveyance from the defendant Frances A. Berger to the defendant Fanny Adams. In 1884, Mrs. Adams bought a lot of land, and caused it to be conveyed to her daughter Mrs. Berger, and advanced the money necessary for the erection thereon of a dwelling house. Thereupon' she took a bond and mortgage back from Mrs. Berger for the amount paid for the lot and house, to wit, $2400.

<p>1. Corporation — Laws ISIS, ch. 611 § 18 — Liability op directors ip report IS NOT PILED.</p> <p>The directors of a company organized under Laws ISIS, ch. 611, become liable for the debts of the company contracted during their term of office as such unless they file with the Secretary of State the report as provided by § 18 of that act.</p> <p>2. Same — Any director may terminate his liability by piling report.</p> <p>So long as the default continues, the other essentials existing, there is no-distinction between directors in office at the time of default and those subsequently elected. Any director has the power at any time to protect himself from liability by filing a report and his failure to do so imposes a liability for debts contracted during his term.</p> <p>3. Pleadings — Amendments to — Code Civ. Pro., §§ 723, 519.</p> <p>Where a complaint so far stated a cause of action that there was sufficient to show for what the action was brought and the defendants answered and came to trial and there for the first time raised the objection of its insufficiency. Meld, that the error being one which in no way misled or prejudiced the defendants upon the trial, the allowance of an amendment of the complaint so as to make its allegations sufficient was not only within the power of the court but was an imperative duty.</p> <p>4. Corporation — De pacto — Sufficiency.</p> <p>Although the papers filed by which a corporation is sought to be created under this act are so defective that in an action against it by the State, it would for that reason be dissolved, yet if colorable by acts of user under such an organization it becomes a corporation defacto and no advantage can be taken of such defect in its constitution collaterally by any one.</p> <p>5. Same — Evidence — Certificate of secretary of state that report HAS NOT BEEN FILED, SUFFICIENT EVIDENCE OF THE PACT — CODE ClV. Pro., § 921.</p> <p>The certificate of the Secretary of State that a corporation has filed no annual report in his office as required to by law is sufficient evidence of that fact by force of Code Civ. Pro., § 921.</p>

<p>1. MORTGAGE — Foreclosure of — Surplus must be paid into court— Code Civ. Pro., § 1638.</p> <p>If, on the sale of premises in an action to foreclose a mortgage thereon there is any surplus of the proceeds after payment of the expenses of the sale and satisfying the mortgage debt and costs of the action, it must be paid into court.</p> <p>2. Same — Disposition of surplus — Supreme court, rules 61-64 — Referee's report binding on parties.</p> <p>The subsequent disposition of the surplus, if there are claimants, is regulated by supreme court rules 61-64, which among other things provide that the claimant must file with the clerk where the report of sale is filed a notice stating that he is entitled to the same or a part thereof and he thereupon becomes entitled to an order of reference. All persons who have appeared in the cause, and all persons who upon the official search appear to have an unsatisfied lien must under the direction of the court have notice of the proceeding. The referee in such a case is to ascertain and report the amount due to the claimant or to any other person, which is a lien upon such moneys, and to ascertain the priorities of the several liens thereon. On such a reference the referee has the power to determine the validity and-amount due upon any claimed lien, and this extends not only to liens equalling in amount the surplus moneys, but all liens whatever. The referee has power to pass upon the question whether a party claiming as an owner ■of a subsequent mortgage and to whom insurance upon the premises was made payable in ease of fire, has rendered himself chargeable with the' amount of the policy by laches in the presentation of proofs of loss. The determination of such referee when confirmed by the court is binding upon the parties and can not be disturbed except by appeal.</p>

This action was brought to recover a certified cheek for $ 1000 which had heen drawn by the defendant Waddell, and deposited, with defendant Ma“jor, to be held by him and paid over to plaintiff under the following conditions: The defendant Waddell had orally contracted to purchase of the plaintiff certain premises,, paying $1000 besides assuming a certain mortgage, etc. A certified check for the $1000 was to be deposited with defendant Major, who was to hold it until Waddell…

<p>Eixtdbes — Bight to bemove — Summary proceedings for rent.</p> <p>Where a tenant is evicted for non-payment of rent by a judgment in summary proceedings, lie bas a reasonable time after sucb ending of bis lease to remove trade fixtures.</p>

<p>1. NeGXI&ENCE — EVIDENCE OF, WHAT SUFFICIENT.</p> <p>In an action for damages for running over a boy, the plaintiff, the mother of the hoy, testified that he came in from the street suffering from injuries. A neighbor testified to seeing him on the same day knocked down and run over by a brewery wagon, and that he got up and ran to the gate of the house where he lived; and two other witnesses testified to seeing the boy on that daygettingup immediately in the rear of one of the defendant’s brewery wagons. Held, that there. was sufficient evidence to sustain a verdict in favor of plaintiff.</p> <p>2. Streets — Eoot-teavblers — Duty of drivers as to.</p> <p>The driver of a vehicle in a street is bound to use ordinary care to avoid running over foot-travelers, whether they are or are not on the crosswalk.</p>

<p>Appeal from judgment entered on the verdict of a jury in favor of plaintiff.</p>

<p>YeNDOR AND VENDEE — SALE AND DELIVERY, WHAT CONSTITUTES.</p> <p>Where the vendor takes back goods to be replaced by others, the sale and delivery of said goods is rescinded by consent, and no action will lie upon that transaction. If the goods are taken back to make them perfect, the previous acceptance by the vendee is waived. In neither case can the vendor recover for goods sold and delivered.</p>

<p>Appeal from an order for defendant to serve a bill of particulars.</p> <p>This is an action originally brought by the plaintiff against the sheriff of the county of Kings, to recover the sum of fifty-five thousand dollars, for the alleged unlawful conversion of certain personal property, formerly belonging to Oscar F. Hawley, and which is claimed by the plaintiff under an assignment to him by said Hawley, in trust for the benefit of his creditors. The defendant justified'the seizure under an execution issued by David Whitney, jr., a judgment creditor of said Hawley, upon the ground that the alleged assignment was fraudulent and void, and was made by Hawley with fraudulent intent. Subsequently - to the joining of issue the said judgment creditor was by an order of this court substituted as defendant in place of the sheriff. On plaintiff’s motion the special term made an order requiring the defendant to furnish a bill of particulars, showing generally the grounds upon which he will claim upon the trial of this action that, the assignment referred to in the complaint in this action is fraudulent, and was made with fraudulent intent.</p> <p>And it is further ordered that if the defendant shall claim that said assignor has secreted a part of his estate with intent to prevent it from coming to the hands of the assignee, that the defendant shall specify what property, whether real or personal, was transferred with a view to subtract it from the assignee. And it is further ordered that if the defendant shall claim that any of the prefer enees contained m the said assignment, are fraudulent or fictitious, that he shall specify the same in said bill of particulars, etc. And that at any time before the trial of the action, the defendant may apply on notice of two days to amend his bill of particulars, and the plaintiff on like notice for a further bill. .From this order defendant appealed to the general term.</p>

<p>1. Supplementary proceedings — Special proceeding.</p> <p>A proceeding supplementary to execution is a special proceeding and the same presumptions exist under the Code of Civil Procedure as under the Code of Procedure.</p> <p>2. Same — Receiver — Real estate — Title to — Code Civ. Pro., §§ 2464, 2468.</p> <p>A receiver in supplementary proceedings is appointed under Code Civ. Pro., § 2464 and by § 2468 the title to real property vests in the receiver when a copy of the order is filed in the county where the land is located.</p> <p>8.Same — Power to appoint in city court op New York.</p> <p>Any judge who has jurisdiction to entertain supplementary proceedings has the power to appoint a receiver. A receiver duly appointed by a judge of the city court of New York has the same rights as a receiver in said proceedings duly appointed by a judge of the supreme court.</p> <p>4. Same — Leave to sue granted by what court — Code Civ. Pro., § 2471.</p> <p>The order granting leave to sue must be made by the court out of which the execution issued.</p> <p>5. Same — Receiver’s bond — Omission op seals — Code Civ. Pro., § 729.</p> <p>The omission of the seals on the receiver’s bond is an irregularity and not jurisdictional. The sureties are liable on the instrument and the rights of no party are prejudiced by such omission, Code Civ. Pro., §729. If the judgment debtor objected to the paper it was his right to apply to the court appointing the receiver and have it corrected.</p> <p>6. Same — Real estate, when vested in receiver.</p> <p>Where the creditor before the appointment of the receiver had exhausted his remedy at law against a partnership and against the individual members thereof herein proceeded against (by issuing an execution against them in the county where the partnership was located) the appointment of the receiver was regular, and the receiver by such appointment became vested with the real property of the judgment debtor in a county upon filing in the office of the clerk of that county a copy of the order of appointment.</p> <p>7. Same — An officer of the court — Duties — Power. ■</p> <p>The receiver is an officer of the court and is bound to take proceedings to carry out his trust. He has a right to avoid a conveyance of his debtor if fraudulent, but he has no power to issue an execution against the other defendants in the judgment.</p> <p>8. Practice — Fraudulent conveyance — Action by judgment creditor.</p> <p>In an action brought by a judgment creditor to set aside a fraudulent conveyance it must appear that the remedy at law has been exhausted and it must be shown that an execution has been issued on the judgment to the county where the debtor resides.</p> <p>9. Same — Solvency of judgment debtor must be pleaded and proved.'</p> <p>If it appears that a judgment debtor against whom an execution had been issued and returned unsatisfied, had ample means to pay the judgment,or if the defendants in the judgment or either of them were solvent the court would dismiss an action brought by a judgment creditor to set aside a fraudulent conveyance and leave him to issue a new execution, — but such a defense would have to be pleaded as the proof of issuance and return of the execution would make out a prima facie case. The creditor is not required to prove the insolvency of the judgment debtor in any other way.</p> <p>10. Preference of creditor when fraudulent.</p> <p>A debtor cannot prefer a creditor if it is done with fraudulent intent. A Walker Otis, for plaintiff ; Moody B Smith, for defendant.</p>

<p>NEGLIGENCE BY DRUGGIST — WHAT PROOF OF.</p> <p>Where a druggist uses strychnine, when a preparation of camphor in a prescription is called for. Held, that without some satisfactory explanation, the proof of negligence on his part is established.</p>

<p>1. MORTGAGE FORECLOSURE — WHAT DEFENSE CAN BE MADE.</p> <p>2. Same — Deed subject to a mortgage — -Grantee when estopped,</p> <p>The defense that a mortgage was given to protect the property from apprehended claims against the mortgagor is not available to the mortgagor though it may be to the creditors of the mortgagor.</p> <p>Where a grantee accepts a deed of premises subject to a mortgage, he is estopped from questioning the validity of the mortgage.</p>

<p>1. Assignment for the benefit of creditors — Composition deed — Matt BE SET ASIDE FOR FRAUD.</p> <p>Where the evidence shows that an assignment for the benefit of creditors was f raudulently made, and that the assignee has retained large sums of money belonging to the firm as a result of a conspiracy to defraud the creditors ; a creditor who, in ignorance of these facts, signed a composition deed willbe allowed to set aside said deed and to recover the balance of the debt owed to him by said firm from the assignee.</p> <p>2. Evidence — Judgment in another action when admissible,</p> <p>The judgment roll in the action of foreclosure in which the deficiency-judgment was entered, and upon which this action was brought, was-properly admitted in evidence to prove the debt of plaintiff and the exhaustion of his legal remedies.</p> <p>3. Same — Statement of partner when admissible.</p> <p>The statements of one of the partners at the meeting of the creditors of said firm were properly admitted, for it was upon the falsity of these statements that plaintiff had to rely, to set aside the composition deed which ha signed.</p>

<p>CONTRACT FOE SATE OF LAND — WHEN TENDEE OF PURCHASE MONET MUST BE PROVED — COSTS.</p> <p>Where in a contract for sale of lands, the purchase money was to he paid on a particular day, and neither party performed or offered to perform on that day, neither party can maintain an action at law upon the contract, hut in such case, either party may claim a specific performance in equity, making the offer incumbent upon him in the complaint for specific performance. Failure to make tender of performance before the commencement of the action will influence the question of costs.</p>

<p>Appeal from a judgment entered at special term in favor of plaintiff. Facts will be found in the dissenting opinion of CLEMENT, J.</p>

<p>Appeal from a judgment in favor of plaintiff entered at special term.</p>

<p>Taxes asb assessments in Bbooklyn — Tax certificates — Kecoveby op money paid — Statute op Limitations.</p> <p>Where certain certificates of-sales for taxes and assessments in the city of Brooklyn, dated prior to June 1864, each certified that on the date thereof, the tax collector sold the premises described, for taxes, etc., to the person named for the term of years named for which he paid a specified sum, “ which said purchase entitles him to a lease of said premises for the term aforesaid after the expiration of two years from the date hereof unless the said premises be redeemed within that time, or any irregularity shall be discovered in the proceedings prior to said sale, in which case said purchase money . . . shall be repaid to said purchaser or his assigns.” No-leases of the premises were ever given, nor were they redeemed, but the sales were void on account of irregularities in the proceedings prior to the sales. Held, that the right of action to recover the money paid for said certificates from the city accrued two years after their date (namely 1860) and that the statute of limitations began to run in favor of the city at that same time.</p> <p>2. Sake — Effect of Laws 1865, Chap. 721, § 12.</p> <p>JETeld, that the only effect of Laws 1865, chapter 721, § 12, on the certificates was to enable owners of the premises sold for taxes by giving certain notice to compel the owners of certificates to assert their claims for a lease within three years or abandon it.</p> <p>Same — Effect of Laws 1883, Chap. 114.</p> <p>Held, that the right of action on said certificates was barred by the statute of limitations before Laws 1883, chapter 114, was enacted — That even if holder of said certificates were entitled to a portion of the new tax levied under said law, they must establish just what proportion of said new tax was levied, on account of their certificates.</p>

<p>1. WiTNESS-=-WHEN exempt prom service op summons.</p> <p>Where the defendant being a non-resident of the city of Brooklyn, came within the jurisdiction of the city court of Brooklyn for the purpose of attending a criminal trial before a justice of the peace, as a witness, and for no other purpose, and the summons in this action' was served upon him immediately on the termination of the trial and before he had left the court room, Held that the service of the summons was properly set aside although there was no proof that defendant was subpoenaed to attend.</p> <p>2. Same — Exempt in going returning and staving.</p> <p>A witness or party coming voluntarily within the jurisdiction of a court of limited jurisdiction is exempt from the service of summons or other process for the commencement of an action in going, returning and staying.</p>

<p>Appeal from an order entered at the special term denying a motion to vacate on order of arrest granted in this action.</p> <p>Defendants were builders, and made a contract witb Easton to do all tlie plumbing of certain houses which they were engaged in erecting. When Easton’s work was completed, they owed him $671.25 ; he demanded his money but did not get it; defendants informed him that they sold one of the houses and had taken a mortgage thereon to secure him, and would transfer this mortgage and. the bond to him to secure the payment of their note which they offered for the indebtedness; he at first declined, but was finally persuaded to accept the note and the security. Cardwell, as an excuse for the absence of the mortgage, told plaintiff that it was being recorded, and he would get it and bring it to him with a proper assignment of the bond and mortgage, and a written promise substantially embodying the agreement was delivered to the plaintiff ; subsequently plaintiff sent for the bond and mortgage and assignment, and was put off from time to time with falsehoods; finally the note became due, and was* dishonored, and inquiry developed the fact that in the meantime defendants had parted with the title to all the houses; that judgments had been recovered against them, and the bond and mortgage promised to him had been discounted before it was due by the mortgagor for Cardwell, and the money received thereupon handed over to his father. Plaintiff was thus defrauded out of his debt which is represented only by a worthless judgment.</p>

This is an action for an assault and battery committed by the defendant’s servants upon the plaintiff. On the second day of March, 1886, the plaintiff became a passenger on one of the defendant’s cars on Adams street. The conductor of the car stood at the rear door when the plaintiff entered the car and said nothing to him.

<p>Negligence — Contributory — Railroads.</p> <p>This action was brought to recover damages for injuries resulting in death; intestate being crushed between two trains on the. defendant’s railroad. The intestate, in endeavoring to board a slowly moving train had run across the track in front of another train approaching slowly from the opposite direction, and finding he was too late, stood between the tracks and was crushed by reason of the hind truck of the car he wished to board being off the track, which threw the rear of that car into collision with the other train. Held, that it was not negligence per se to stand between the tracks, but a question for the jury.</p>

<p>Appeal from a judgment entered on a verdict at the trial term in an action against the sheriff of King’s county to replevy certain goods taken under a warrant of attachment issued out of the Supreme Court against Leon Samuels.</p>

<p>Appeal from a judgment entered at special term in favor of defendant.</p>

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

<p>1 Landlord and tenant — when tenant cannot claim to have been EVICTED.</p> <p>A lessee cannot go on and occupy premises and then claim an eviction.</p> <p>2 Same — Written lease cannot be varied by parol.</p> <p>The rule that a written instrument cannot he varied or contradicted by prior or contemporaneous negotiations and oral promises, but that all such promises and conversations are merged in the writing, applies to a written lease</p>

<p>PRINCIPAL AND AGENT — SPECIAL AGENT — DUTY OF THOSE DEALING WITH— Employment oe attorney.</p> <p>A person dealing witli a special agent is hound to ascertain the extent and limit of the special authority and if he fail to do this the risk is upon him that the transaction may fail to be binding upon the alleged principal. Evidence insufficient to show authority to employ an attorney and bind the principal to compensate him.</p>

<p>Principar and agent — Editor of journar — Power to bind proprietor.</p> <p>The mere fact that a person is an editor of a journal or periodical does not in law clothe him with power to bind the publisher or proprietor to pay for any contribution which he accepts; the legitimate functions of an editor imply no such power.</p>

<p>Appeal from a judgment dismissing a complaint of tbe plaintiffs upon tbe defendant’s motion át the close of tbe plaintiff’s •case.</p>

<p>1. CONTRACT FOR ADVERTISING-WHEN ENTIRE — EFFECT OF RESCISSION-Right to rescind.</p> <p>The plaintiffs entered into seven separate contracts with defendant whereby defendant agreed to place a certain advertisement in a certain number of street cars in various cities at an agreed price for varying periods of time. The defendant entered upon the performance of ■ the several contracts and was paid sums of money from time to time on account amounting in all to $285.84. , Plaintiffs complained at various times that defendant was not performing his contract and finally wrote defendant saying that he had failed to fulfill his contract, and for that cause gave notice that they rescinded all contracts with defendant. This action was commenced by plaintiffs to recover the $285.84, paid to defendant on account of the contract, alleging it was paid under a mistake of fact and in the belief that defendant was carrying out his part of the contract. The defendant alleged performance of the contract up to the notice of plaintiffs and counterclaimed that there was due him for work actually performed of which only the $285.84 had been paid, and claimed damages for the refusal of plaintiffs to perform their part of the contract. Held, that the contracts were entire and plaintiffs had no right to cancel or rescind them or refuse to perform except for a breach or failure of performance on defendant’s part. That, if they did rescind them without cause they were liable for the contract price of the work done and prospective profits for the balance of the term of the contracts.</p> <p>2. Same — What entitles one to rescind — When money paid can be recovered.</p> <p>If,, on the other hand, defendant had up to the time named failed to perform his part, plaintiffs were entitled to cancel the contracts and recover the money already paid the defendant by mistake or ignorance of the facts.</p> <p>8. Same — Duty and right of party receiving notice of rescission.</p> <p>Defendant had no right after the rescission of the contracts by plaintiffs to go on and complete performance on his part; it was plaintiffs’ privilege to rescind and stop all further performance by defendant subject only to the right of defendant to recover the contract price of work already performed, and prospective profits as to the remainder.</p> <p>4. Same — Measure of damages.</p> <p>The difference between what the cost of the work would be and the price agreed to be paid is the measure of damages applicable only to executory contracts or prospective profits.</p> <p>5. Practice — New trial — When general term can grant.</p> <p>When a motion is made for a new trial upon the ground that the verdict is contrary to law the entire case is before the general term for review, even if no exception has been taken to the charge. The general term of a court on appeal has the right to order a new trial when an injustice has been done although no exception has been taken and ho motion made for a new trial upon the ground that the verdict is contrary to law. It will only exercise this power where the injustice is great..</p>

<p>1. Landlord and tenant — When a lease terminates — ReY. Stat, (5th, ED.) VOL. 3, § 1, PAGE 34.</p> <p>The Rev. Stat. (5th, Ed.) vol. 3, §-l, page 34, does not apply to extend a lease to May 1st, where a party whose written lease expired Feb. 1st, held over and occupied the premises by an arrangement made between the tenant and Jhe landlord whereby the latter was to permit the tenant to remain until such time as he (the tenant) moved out, paying rent up to that, time. And the landlord is only entitled to rent up to the time the tenant moved out.</p> <p>2. Trial — Practice — Eeeect op failure to ask for the directioh of A VERDICT.</p> <p>The failure of the plaintiff 'to ask for the direction of a verdict or to except to the submission of the facts to the jury is an admission that there was sufficient to go to the jury, and having taken the chances of a verdict cannot thereafter raise the objection. *</p>

This is an appeal from a judgment entered in favor of the-plaintiffs upon an. order made at special term, upon the motion of the defendant to compel the plaintiff to enter judgment, by reason of the fact that the plaintiffs’ demurrer to the affirmative defense herein was sustained, and judgment directed accordingly.

<p>1. Civil service — Practice — Complaint—Demurrer for insufficiency.</p> <p>Plaintiff alleged'that he had been examined by the Board of Civil Service Commissioners of New York city for the position of watchman, and passed at a percentage of 96.75 and his name was placed on the list of eligible candidates, that he was an honorably discharged Union soldier. That since said examination he had frequently called upon the secretaries of said board and demanded that his name be sent to any department where there was a vacancy, and was always told there was no vacancy when in truth there were vacancies, and that vacant positions which he was entitled to, had been filled; that “by reason of said malfeasance and nonfeasance of defendants,” he has suffered damages, etc. On demurrer to the complaint for insufficiency, Held, that the demurrer must be sustained. That the terms.“malfeasance,” and “nonfeasance,” as applied to defendants have no legal value in themselves, being unsupported by facts alleged.</p> <p>2. Court — Power to redress legal wrong — May create forms FOR-GRANTING REDRESS WHERE NONE EXIST.</p> <p>Eor every legal wrong there must be a legal remedy; if no precedent or form for granting redress is in existence, it is the right and duty of the court to create one in order that justice shall not fail.</p>

<p>MOTION to punish for contempt.</p>

<p>1. Sureties, liability of — Action on undertaking-.</p> <p>Where an undertaking is for the benefit of the defendants jointly and not severally to each, one of them alone cannot bring an action on the undertaking until both of them have recovered judgment in the action in which the undertaking was given or until it is finally decided that the plaintiff was not entitled to the order of arrest as to both defendants, at all events the other defendant should have been made a party plaintiff or defendant, so that the rights of all persons concerned might be determined.</p> <p>2. Same — When discharged from liability.</p> <p>When the relative position of the parties became changed, not by an order of the court, but by mutual consent of the attorneys, the sureties upon the undertaking are released from further liability. Any alteration or departure by the parties from the terms of the contract for the performance of which one becomes surety, discharges the surety whether the alteration was injurious or beneficial to the surety.</p>

<p>1. Pbactice — Notice op trial — § 980, Code Civ. Pro.</p> <p>By section 980 of tlie Code the party who has served a notice of trial is alone authorized to move the cause for trial. The defendant having neglected to give such notice is not in a position to urge the cause for trial.</p> <p>2. Same — Waiver op Notice.</p> <p>An exception taken to the 'refusal of the court to postpone the trial was sufficient to bring the question before the court on appeal from the judgment,. the plaintiff does not waive the notice of trial by going on with the trial. -It was not necessary to submit to a dismissal involving the discharge of the defendant from custody.</p> <p>8. Same — Preference — Order granting- is not conclusive upon trial judge — § 793, Code Civil Pro.</p> <p>An order granting a preference is not conclusive upon the trial judge. Section 793 of the Code requires the service of the order with or before notice of trial and expressly provides that the order may be vacated by the trial judge holding the term at which the preferred cause is noticed for trial.</p>

<p>Appeal from an order permitting plaintiff to continue and prosecute the action in forma pauperis.</p>