Volume 54 — Sickels

(Eeported below, 32 Hun, 321.1) This .action was brought by plaintiff as executrix of the estate of Austin Myers to compel defendant to reassign a bond and mortgage alleged to have been assigned by plaintiff’s testator to it as security for a loan, or in case of its inability to reassign, to pay the balance due over and above the loan. The facts so far as material are stated in the opinion.

directed a new trial. (Reported below, 33 Hun, 214.) This action was brought to recover damages for an alleged breach of an ante-nuptial contract. In September, 1879, the plaintiff was a widow, whose husband had been killed in the civil war, and she was receiving an annual pension of $96. She became acquainted with the defendant’s testator, Sealey Peck, and he made her a proposition, of marriage which led to a correspondence between them.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 28, 1885, which directed judgment in favor of defendant, rendered upon a case submitted under section 1279 of the Code of Civil Procedure.</p> <p>The material facts are° stated in the opinion.</p> <p>The office of Mr. Edson was an elective office, and could not be extended by legislative act. (People, ex rel. v. Bull, 46 N. Y. 57; Long v. Mayor, 81 id. 485; Green v. Whitlock, 92 id. 191.) Mayor Grace’s term could possibly be extended forward or backward so as to be held to commence before noon of January 1, 1885. (Long v. Mayor, etc., 81 N. Y. 425; Olmstead v. Denis, 77 id. 387; Supervisors, etc., v. People, 7 Hill, 511; Sedg. on Stat. & Const. Law, 382; Wappels Co. v. Bigham, 10 Iowa, 39; People v. Barnett, 100 Ill. 332; People v. Brennan, 3 Cal. 477.) It is only in cases where the meaning of statutes is doubtful that the courts are authorized to indulge in conjectures as to the intention of the legislature, or to look to consequences in the construction of the law; when the meaning is plain and unambiguous, the act must be carried into effect according to its language, or the courts would h.e assuming legislative authority. (Woodruff v. Mech. Bk., 25 Wend. 673; Bowen v. Newell, 8 N. Y. 190 ; Higgins v. Moore, 34 id. 417; Easton v. Pickersgill, 55 id. 310; Fellows v. Mayor, etc., 17 Hun, 249; Scott v. Reid, 10 Pet. 524; Dwarris on Statutes, note 3, ed. of 1875.) It is contrary to the doctrine of the common law for a public officer to hold over beyond his specified term. (People v. Tiernan, 30 Barb. 193; Tully v. State, 1 Carter [Ind.], 500.) The case of the mayor of Hew York is in the same category as that of any other elective officer. Respecting other officers, the Court of Appeals has held that their terms cannot be extended, either by implication or by a direct legislative act. (People, ex rel. Hill, v. Wood, 46 N. Y. 57; People v. McHenry, 52 id. 574; People v. Crooks, 53 id. 648; People v. Wood, 91 id. 616; Woodruff v. Brooks, 25 Wend. 673; Bowen v. Newball, 8 N. Y. 190; Higgins v. Moore, 34 id. 417; Fellows v. Mayor, etc., 17 Hun, 249.) A public officer cannot be deprived by mere implication of the powers conferred upon him for public purposes by a clear provision of la'w. (Andrews v. Van Tassell, 53 N. Y. 631; Drake v. 'Gilmore, 52 id. 389.) Mr. Kirk, when he acted as mayor, and appointed the relator to the office of corporation counsel, was a defacto officer, as well as de jure, and the acts of a de facto officer are good as to third persons and strangers; and the appointee of a de facto mayor is a third person within the rule. {People, ex rel. Stiners, v. AntTiony, 6 Hun, 142 ; Mayor v. Flagg, 6 Ahb. Pr. 296, 302.) It is not necessary that a law amending a municipal charter should specify that it is an amendment to a charter, or to a" particular part of it; it is sufficient if it so operates, if its provisions affect the corporation in its government. {People, ex rel. v. Briggs, 50 H. Y. 553.) There was the vacancy in the office of mayor, the filling of which, by the president of the board of aldermen, was provided for by law. (State v. Allen, 21 Ind. 516.) Eo vacancy can be said to exist in an office once filled till the term of service expires, or till the death, removal or resignation of the person appointed. (Johnson v. Wilson, 9 Am. Dec. 50.) It was contrary to the common law for a public officer to hold over beyond his term. (People, ex rel. v. Tiernan, 30 Barb. 193.) Mr. Edson’s term was not, neither could it be, extended to noon, January 1,1885. (People, ex rel. v. Bull, 46 N. Y. 57; Long v. Mayor, 81 id. 485; Green v. Whitlock, 92 id. 191.) After the expiration of his term of office, to-wit, after the beginning of the 1st day of January, 1885, Mr. Edson was neither de facto nor de jure an incumbent of the office. (Long v. Mayor, etc., 81 N. Y. 435; Olmstead v. Denio, 77 id. 378.) A public officer cannot be deprived, by mere implication, of the powers conferred upon him for public purposes by a clear provision of the law. (Andrews v. Van Tassell, 53 N. Y. 631; Drake v. Gilmore, 52 id. 389; People v. Metzkice, 47 Cal. 524.) Mr. Kirie was mayor defacto and de jure. (People, ex rel. v. Anthony, 6 Hun, 142; Mayor v. Flagg, 6 Abb. Pr. 296; State v. Leary, 4 Cent. L. J. 156.) An office may be vacated by abandonment, or resigned by paroi, and the existence of a vacancy in either case will depend upon all the facts and circumstances attending the same. (State v. Allen, 21 Ind. 516.)</p> <p>In determining the various questions arising in this case, the court is not tied down to any mere verbal or literal interpretation of the several statutes on which such questions depend. The intention of the legislature must be sought for, and these statutes must, if possible, be so construed as to carry out such intent. (People, ex rel. v. Com’rs, etc., 95 N. Y. 554; Burch v. Newbury, 10 id. 389; Oswego S. F. v. Dolloway, 21 id. 449; People v. N. Y. C. R. R. Co., 13 id. 78; Donaldson v. Wood, 22 Wend. 395; Edwards v. Elbert, 12 Johns. 466; Main v. Prosser, 1 Johns. Cas. 131; Ailwary v. Gurrous Doug., 3 Bing. 193.) The legislature intended that the power conferred by the act of 1884 (Chap. 410) should not be exercised by the officers in office when it was passed, but should be exercised only by the officers to be elected at the elections in November, 1884, and thereafter, by the whole body of the electors, with a view to the exercise by them of the powers conferred by this act. (Burch v. Newbury, 10 N. Y. 389; Elmendorf v. Mayor, etc., 25 Wend. 693.) Mr. Kirk was not president of the board of aldermen between midnight of December 31,1884, and noon of January 1, 1885. (1 K,. S. [Edm. ed.] 107, § 3; Laws of 1884, chap. 74; Laws of 1880, chap. 4.) There was no vacancy in the office of mayor of the city of New York within the meaning of section 32 of said Consolidation Act. (Chap. 410, Laws of 1882; Tappan v. Gray, 9 Paige, 507; People v. Van Horne, 18 Wend. 515; Elmendorf v. Mayor, 25 id. 693; People v. Ferris, 16 Hun, 219; Const. 1777, §23; Const. Amendments, 1801, § 5; Const. 21, art. 4, § 10; Laws of 1824, 380 chap. 328; 1 It. S., chap. 5, tit. 5, § 12 [Edm. ed.], 105; IE. S. chap. 5, tit. 6, art. 1, § 9 [Edm. ed.], 107.) As the existing statutes provided that the mayor should hold over until his successor entered upon the duties of his office, there was no vacancy to be filled while he so held over. (Tappan v. Gray, 9 Paige, 507; People v. Van Horne, 18 Wend. 515; Pell v. Ullmer, 21 Barb. 500; People v. Woodruff, 32 N. Y. 355; People v. Crissey, 91 id. 634; People, ex rel. Furman, v. Clute, 12 Abb. Pr. [N. S.] 399; Elmendorf v. Mayor, etc., 25 Wend. 693.) The legislature had power to provide otherwise than by election a person to temporarily perform the duties of an office which is elective by the Constitution, in cases where the machinery of election failed to furnish such person. No constitutional authority so to do is necessary. (People v. Snedeker, 14 N. Y. 52; People v. Fisher, 24 Wend. 215; People v. Bull, 46 N. Y. 57; People v. Batchellor, 22 id. 128; People v. Woodruff, 32 id. 355.) There is a distinction between a “ vacancy ” and an “expired term.” (People v. Gardner, 54 N. Y. 316.) The rule that a de facto officer's acts are valid as to strangers and third persons has no application to the question of the right or title of his appointee to the office to which he has been appointed. The appointee is not a stranger or third person within the rule mentioned. (People, ex rel. v. Anthony, 6 Hun, 142; Mayor v. Flagg, 6 Abb. Pr. 296.)</p>

The nature of the action and the material facts are stated in the opinion. A bill or note as between immediate parties would not be enforced if given for past cohabitation, because not founded upon a consideration. (1 Daniels on Reg. Inst., § 195.) If Wadsworth had made and given this note to plaintiff, as a gift, she could not recover upon it, unless it was based upon a valuable consideration.

This action was brought for the alleged conversion of certain trunks and their contents, constituting the baggage of plaintiff and his family. It is reported on former appeals in 49 N. Y. 303, and 80 id. 353. The material facts are stated in the opinion. If there was a conversion by defendant it was waived by plaintiff.

Stimson and Frederick C. Vroman, as executors of the will of John ÍT. Vroman, deceased. The facts so far as material are stated in the opinion. The surrogate did not erf in ruling that the payment of the $2,000 mortgage was postponed until after the widow’s death and the interest thereon was to be applied toward the payment of her annuity of $500.

<p>A claim against the State was based upon the alleged infringement of rights acquired by grant from the State, executed by the canal commissioners under acts of 1822 and 1827. (Chap. 270, Laws of 1822 ; and chap, 100, Laws of 1827.) The act first mentioned recited in substance that said commissioners, by operations determined on for improvement of the navigation of the Hudson river, would destroy and.render useless a mill-site and dam described-therein, and in compensation for such loss the commissioners were authorized to grant to the owners the privilege of drawing a specified quantity of water from the Erie canal, provided “ that it shall be lawful for the canal commissioners, or a majority of them, from time to time to modify or in whole to revoke any grant made in pursuance of the act as to them may seem necessary and proper for the preservation of the navigation of said canal.” The owners, in 1828, erected valuable mills run by water taken from the canal in pursuance of said grant, and they and their grantees continued to use the water until 1875, when claimant, who had succeeded to the right, was deprived thereof in pursuance of a resolution of the canal commissioners, adopted in that year, which recited that the water so drawn was required “ to protect and preserve the navigation of the canal,” and thereupon resolved that said grant he ‘‘ rescinded, revoked, annulled and entirely abrogated.” The board of claims, on motion of the attorney-general, dismissed the claimant’s petition on the ground that “the facts stated in the claim, and exhibits under the laws of this State, do not constitute any claim against the State.” Held no error; that while the grant in question was • based upon a good consideration, i. e., as a compensation for property appropriated by the State, and assuming the legislature had power to make the contract, the right granted was a limited one, and liable to be defeated by the happening of the contingency specified, which had happened ; that the right of revocation had been duly exercised and all rights under the grant destroyed.</p> <p>It was averred in the petition upon which the claim was made, that the Mohawk river, upon which the original mill-privilege was located, was not navigable for any purpose ; that the tide never flowed in that portion of it. ‘Held, that the motion to dismiss was in the nature of a demurrer, and for all the purposes of the proceedings impliedly admitted the truth of the averments in the petition ; but that even if the stream was navigable it did not preclude the lawful acquisition of a mill-site and dam thereon ; that it was competent for the State to grant and for individuals to acquire the right to erect a dam and to possess it as individual property ; that the act, therefore, was not a mere voluntary exercise of the bounty of the State, hat was within the legislative power and the grant was based on a good consideration.</p> <p>It was also alleged in the petition that subsequently to the making of the grant, the capacity of said canal had been greatly enlarged without the consent of the owner of the grant, and that the necesssity for the appropriation for canal purposes of the water granted arose from the enlargement, which rendered an increased quantity necessary. It was urged by the claimant that the terms of the contract had reference to and were to be construed in View of the conditions of canal navigation at the time of the grant, and that neither party could change any of these conditions to the prejudice of the other without consent of the latter. Held untenable ; that the parties contracted with reference to the necessities of navigation only, and whenever for any reason the necessity arose, the property by the terms of the contract was to revert to the State.</p> <p>While the role requiring a strict construction, as against the grantee, of a grant from the State does not apply in all of its severity, and in all cases where the grant is for a good consideration, it may not he relaxed when the grant relates to rights which the State holds in trust for the public * use, such as the supervision of public hi ways and the control of navigable waters.</p>

The ground of the motion was that the reference had been terminated by notice as prescribed by the Code of Civil Procedure (§ 1019) before the delivery or filing of the report. It appeared by the papers that the cause was finally submitted to the referee April 26, 1882. The referee made his report thereon in May, 1882, in favor of defendant, and offered to deliver it to defendant’s attorney upon payment of his fees.

<p>Under the provisions of the Revised Statutes (1 R. S. 730, § 68), vesting in the Supreme Court any unexecuted express trust in real estate upon the death of the surviving trustee, and authorizing the appointment by it of some person to complete the execution of the trust, and under the provision of the act of 1883 (Chap. 185, Laws of 1883), making similar provisions as to personal property, upon application for the appointment of a trustee the court has jurisdiction only to inquire whether the deceased trustee was at the time of his death engaged in the execution of an apparent trust, and whether that trust remains in any respect unexecuted ; if these facts appear it is the duty of the court to make the appointment. It may not determine questions involving the rights and interests of the various parties interested, as they are affected by the validity, extent and character of the trust, or the right of possession of the property alleged to be covered by it.</p> <p>It seems that when a new trustee is thus appointed, such action may properly be instituted by him as will determine these questions.</p>

This action was brought by plaintiff, as receiver of the Knickerbocker Life Insurance Company, to restrain defendant Johnson from delivering to defendant Nelson a satisfaction-piece, executed by said company, of a judgment held by it against said Nelson, and for a judgment directing the surrender to plaintiff of said satisfaction-piece, to be canceled, and declaring said judgment to be in full force and effect.

Appear from order of the General Term of the Supreme Court, made May 16, 1884, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury and granted a new trial. This action was brought by plaintiff, as receiver of the Paterson Fire Insurance Company, upon a policy of reinsurance. The material facts are stated in the opinion.

This action was brought to recover possession of certain goods which the complaint alleged plaintiffs sold to the defendant Goldsmith, the sale having been induced by fraud on the part of the vendees. The material facts are stated in the opinion. As matter of law,, there was no necessity whatever for making any demand, because the plaintiffs had never parted with their title.

The material facts are stated in the opinion. It is only an agreement made at the time the mortgage was made that affects the validity of the mortgage. (Southard v. Benner, 72 N. Y. 424; Russell v. Winnie, 37 id. 591; Brackett v. Harvey, 91 id. 223.) An agreement must be proved. The mere expectation of one party is not enough. It must be the conscious, concurrent assent of both.

(Reported below, 32 Hun, 475.) The nature of the action and the material facts are stated in the opinion. The words “ manufacturing corporation ” are to be interpreted in their usual and ordinary sense, and as relating to all companies, under whatever law incorporated and by whatever general name, whose chief and principal business is the manufacture and sale of artificial products.

(Reported below, 16 J. & S. 409.) The nature of the action and the material facts are stated in the opinion.

This action was for the foreclosure of a mortgage. In 1856 John P. Iiopke died, intestate, seized of the mortgaged premises and of other real estate, and leaving the plaintiff and three children him surviving. In 1874 plaintiff and one of the heirs joined in a conveyance of their interests in the premises in question to the other two heirs, who executed to plaintiff the mortgage in suit to secure the sum agreed to be paid her.

(Reported below, 32 Hun, 7.) This action was brought to recover damages for personal injuries to plaintiff, an infant under sixteen years of age, alleged to have been caused through defendant’s negligence in setting her to work with machinery dangerous to life and limb. Plaintiff was employed in defendant’s steam laundry; her hand was caught and crushed between two heated steam rollers of a machine used for ironing collars and cuffs.

<p>Where the plain meaning of a statute requires that a retroactive effect shall be given to it, and by so doing no vested rights are destroyed, no reason or rule of construction prohibits it, and where it appears clearly that the object of the act is to obviate controversies between innocent parties arising out of defective legislation or the improper conduct of public officers, and to accomplish this object it is necessary to give it a retroactive effect, although there are no express words in the act'giving such an effect to it, it is the duty of the court to so construe it.</p> <p>In 1879 the Troy Observer was legally designated as an official newspaper for the city of Troy, no period was prescribed by statute or by the act of appointment for the termination of its official character. By the charter of the city of Troy, as amended in 1880 (§ 4, chap. 30, Laws of 1880), the common council was directed on the second Tuesday in March of that year, and after the general election in each succeeding year, to designate four official papers, which were required to be members of the Associated Press of the State. The Observer was not a member of that association. The common council failed to comply with said requirement, but in 1881 and in 1883 again designated the Observer as one of the official papers ; it was employed by the city officers and continued to perform the duties of said position until June, 1883. An act was passed in 1881 (Chap. 144, Laws of 1881), by its terms validating the official publications in the newspapers previously designated by the common council and directing payment of their claims for such publications, and in 1883 another act was passed (Chap. 319, Laws of 1883), “ to legalize and confirm ” the official publications in said city," and to audit and pay claims in connection therewith,” which act assumed the legal existence, as official newspapers, of the four designated up to the passage of the act of 1881, and validated all subsequent official publications therein up to October, 1881, and also declared that when the common council failed to designate official papers as prescribed by law, the papers already designated and appointed should hold over and continue to act, and should be paid for services rendered as such official newspapers. In proceedings by mandamus against the city comptroller to compel payment for services rendered after the passage of the act of 1881, held, that it was the plain intent of the act of 1883 to furnish a rule by which might be determined all pending or future controversies in reference to claims for public printing growing out of any neglect of the common council to perform its duty in making designations; that the legal effect of the acts of 1881 and 1883 was the designation of the Observ&r as an official newspaper and authorized the publication therein of all legal notices until a termination of its legal existence by some subsequent affirmative action of the common council, and entitled it to payment as well for such official services rendered during the period between the going into effect of the two acts as of those thereafter rendered.</p>

The complaint in this action alleged in substance that in January, 1875, Marshall F. Shaw executed to William A. Capron his bond secured by mortgage upon certain lands in New Jersey, which bond and mortgage were duly assigned by Capron to Levi Oudkirk, plaintiff’s testator; that Shaw in 1876 sold and conveyed the mortgaged premises to defendant, subject to the mortgage, by deed, which contained a covenant on the part of the latter by which he assigned and agreed to pay the…

The facts, so far as material, are stated in the opinion. The functions of the General Term are limited to affirming or reversing the judgment recovered by plaintiff, and the appellate court cannot make a final disposition of her claim against the defendant, because the General Term have only power to render a judgment absolute where the facts are agreed to by both parties, or found without contradiction on the trial.

(Reported below, 32 Hun, 141.) This action was brought by plaintiff, as administratrix, to recover damages for the death of her intestate, which, the complaint alleged, was caused by the negligence of defendant’s testator. Defendant demurred, claiming that the cause of action did not survive. At the common law all causes ex delieto for damages abated by the death of either party. This rule embraced injuries to the person, to personal property, and to real estate.

The plaintiffs as tax payers of the village of Saratoga Springs brought this action against the Holly Manufacturing Com-pony, the village of Saratoga Springs and the board of water commissioners, alleging that the manufacturing company and the board of water commissioners had assumed to enter into a contract under which the company was to erect certain pumping and other water machinery in the village, and do a certain amount of work thereon, and if accepted by the…

The relators sought by ma/ndamus to compel the sheriff of Ontario county to treat with them as judgment creditors of one George M. Spring, and as such entitled to redeem certain lands theretofore owned by him, and known as lot 5 in East Bloomfield, Ontario county. They failed, because in the opinion of' the court their judgment was not a lien upon the premises. The facts were not disputed and in substance, as related by the trial judge, are, First.

7, 1884, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term and directed judgment for defendant. (Reported below, 32 Hun, 153.) This action was brought by plaintiff, who was owner of certain premises in the city of New York, for the purpose of having certain assessments thereon declared void, and to have said assessments and the taxes based thereon vacated and set aside, and to restrain the collection thereof.

This action was brought by plaintiff as grantee and assignee of one Davis to have certain assessments for the widening of Sackett street, in the city of Brooklyn, upon lands conveyed by said Davis, set aside' as illegal and void; or, in case the validity of the assessment should be sustained, to recover the amount of certain awards made to said Davis for lands taken for said improvement. The material facts are stated in the opinion.

<p>The payee of a joint and several note, at the request of the principal maker, the others having executed it for his accommodation, sent it to a bank for collection. Plaintiff, at the request of the principal, and upon the understanding that the note should be transferred to him, delivered to the bank the amount due thereon, and received the note. The money was forwarded by the bank to the payee, who received it without knowing but that it was a payment ; after learning the facts, however, he retained the money. In an action upon the note, held, that, although the bank had no authority to sell, yet the retention of the money by the payee, after knowledge, and his omission thereafter to demand the note or assert title thereto, was a ratification of the sale ; and that, at least in the absence of evidence that the sureties had been, by information and a consequent belief that the note was paid, induced to remain quiet, and so had been injured, plaintiff was entitled to recover.</p> <p>Gillet v. Phillips (13 N. Y. 114), Houghton v. McAuliffe (26 How. Pr. 270), Burr v. Smith (21 Barb. 262), Fuller v. Bennett (21 N. W. Rep. 433), distinguished.</p>

(Reported below, 33 Hun, 250.) This action was brought against the defendants to recover damages sustained by the plaintiff by reason of their official misconduct as railroad commissioners, in issuing the bonds of the town of Ontario to the amount of $85,000 in aid of the construction of “ The Lake Ontario Shore railroad,” under chapter 241 of the Laws of 1869. The defendants were appointed commissioners December 24, 1870.

Plaintiff was nonsuited at the “Circuit; exceptions were ordered to be heard at first instance at General Term. This action was brought to recover damages sustained by plaintiff by means of false representations on the part of defendants.

. Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made December 23, 1881, which affirmed, so far as appealed from, a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.

(Reported below, 17 J. & S. 5.) The nature of the action and the material facts are stated in the opinion. When called upon for a statement in June, 1881, defendant’s refusal to make one was not a retraction or withdrawal of the one made in February, 1881. (Wright v. Brown, 67 N. Y. 1, 4-6.) Even if the defendant’s testimony is taken as a positive denial of the statement of plaintiffs’ witnesses, Sutton and Prentiss, it was error to dismiss the complaint.

This action was upon a covenant contained in a deed from plaintiff to defendant by which the latter assumed a mortgage upon the premises and covenanted to pay the mortgage debt. On February 18, 1873, plaintiff sold and conveyed to defendant certain premises, upon which there was at the time a mortgage executed by plaintiff to secure his bond due and payable February 15, 1875.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff took service subject to all risks incident to the position. If the defendant did nothing after the employment to aggravate the danger there is no liability. (Gibson v. Erie Ry.

These are cross-appeals from judgment of the General Term of the-Supreme Court, in the first judicial department, entered upon an order made January 11, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict which was rendered pursuant to directions of the court.

Appeal by the Albany and Rensselaer Iron and Steel Company from an order of the General Term of the Supreme Court, in the first judicial department, made January 28, 1885, which affirmed an order of Special Term amending a former order as hereinafter stated. On January 12,1884, the said The Albany Iron and Steel Company commenced an action against The North River Construction Company, defendant herein.

Murray and others, purchasers, to complete their purchases, and relieving them from such purchases. The General Term orders required said purchasers to complete their respective purchases.

This action was brought by Almy & Co., joined with Bowe, sheriff of the city and county of Hew York, as plaintiffs, pursuant to section 677 of the Code of Civil Procedure, to recover from defendants, members of the firm of H. K. & F. B. Thurber & Co., property in their possession attached by the sheriff in an action by his co-plaintiffs against John Gomard & Co., of Curacao.

This action was brought upon an alleged oral promise made by defendants, two members of the firm of Hiram Sibley & Co., to pay for a quantity of seeds, delivered by one Briggs, plaintiff’s assignor, to said firm. The facts appear sufficiently in the opinion.

<p>Where a sidewalk in the city of New Tork has once been paved, upon a plan and of a width at the time deemed suitable, any additional pavement, although it be simply to give additional width, leaving the original pavement undisturbed, is a repavement, requiring as a condition precedent a petition of a majority of the property holders along the line of the improvement (Chap. 410, Laws of 1882), and if made without such petition an assessment therefor is invalid.</p> <p>An aggrieved property holder, however, is not entitled to the special remedy given by the act of 1858 (Chap. 838, Laws of 1858), where the assessment was confirmed after June 9, 1880, for an improvement completed after the passage of the act of 1880 (Chap. 550, Laws of 1880) amending and limiting the operation of the original act; the remedy confided to the courts by said act is limited by the amendatory act to the single case of assessments exceeding the honest and just value of the improvements.</p>

The nature of the action is stated in the opinion. Tompkins county was properly named as the place of trial. (Code of Civ. Pro., § 983; chap. 465 of the Laws of 1875, as amended by chap. 359 of the Laws of 1876, and chap. 153 of the Laws of 1879.) The place of contract constitutes no part of the cause of action.

<p>A trust of personalty is not within the statute of uses and trusts, and may be created for any purpose not forbidden by law ; it may he created without writing, and the delivery of the property is sufficient to pass the title.</p> <p>M., an aged married woman, having no kindred living, placed in the custody of defendant a sum of money with directions to use the same for the support and maintenance of herself and husband during their lives ; after the death of the survivor of them, to use the residue to pay their respective funeral expenses, and for the erection of a suitable monument to their memories, and to expend any residue for masses, for the repose of their souls according to the ritual of the Roman Catholic church, of which church M. and her husband were members. Defendant received the money upon the conditions stated, and promised to apply it in accordance therewith. Defendant was an undertaker; M. selected the kind of coffin, and described the monument she desired, and specified the time the masses were to be solemnized. She died first, then her husband, both intestate. Defendant expended a portion of the fund for the purposes specified, leaving a balance to be expended for masses. In an action by the administrator of the husband’s estate to recover such balance, held, that a trust, valid as between the parties, was created to provide for the support of M. and her husband, which placed the fund beyond their control, and vested the title in the trustee, and so long as ' the husband lived he had no title to any. part of it; that as to the surAplus, without considering the question whether a valid trust was created Attn regard thereto (as to which qumi'e), a valid contract was entered into; / hnd, except in case of a breach thereof, plaintiff had no right of action'. Ika to whether in any event plaintiff as representative of the husband could have a right of action qumre.</p> <p>It is only in respect to dispositions of property which are not to have any effect except upon the death of the owner, and are revocable, that he is confined to a will. If they operate in presentí they may be valid as contracts, although they are not to be carried into execution until after the death of the party making them, or are contingent upon the survivorship of another.</p> <p>It seems that any trust of property which would be valid if created by will, - can be created by the owner in his life-time, provided it is then to go into operation, although to be executed after his death ; and, in case of personal property, may be created by oral agreement, i accompanied by delivery of the property.</p> <p>Gilman v. McArdle (17 J. & S. 463), reversed.</p>

This action was brought to restrain defendants from collecting taxes imposed upon premises in the city of Hew York, occupied by plaintiff for a school, and to have said taxes adjudged illegal and void. Plaintiff did not own, but leased the premises; it claimed them to be exempt under the Revised Statutes. (IR.

- The nature of the action and the material facts are stated in the opinion. Corporations chartered under the General Manufacturing Act of 1848 are prohibited generally from mortgaging any of their property, and they are specially granted power, with consent of stockholders, to mortgage, for the single and only purpose of securing or paying debts.

<p>The effect of the provision of the act of 1872 (§ 2, chap. 874, Laws of 1872), amending the act of 1848 (Chap. 87, Laws of 184S), providing for the formation of gas-light companies which authorizes a corporation organized under it to purchase property and borrow money necessary for its corporate business, and to issue bonds, and mortgage its property and franchises to secure any debts so contracted, was to supersede the provisions of the Amendatory Act of 1867 (Chap. 480, Laws of .1867), which required the written consent of two-thirds of the stockholders to the execution of a mortgage.</p> <p>A corporation organized under the act as amended has power to purchase property for the corporate purposes, to contract a debt therefor, if necessary, and to issue bonds, and mortgage its property and franchises to secure the payment thereof.</p> <p>The provision of the original act (§ 3), requiring the directors of such a corporation to be stockholders, does not apply to the original organization. The persons named in the certificate of incorporation are constituted directors for the first year of the existence of the corporation, with full power to act as such.</p> <p>Where, therefore, the persons named in the certificate of incorporation of such a company, as its directors, entered into a contract with plaintiff, to purchase of him certain property required by the company, to pay him a certain amount in cash, and the balance in the stock of the company ; and plaintiff, in lieu of the cash, accepted the company’s bonds, secured by mortgage upon its property and franchises, held, that the mortgage was valid.</p> <p>In an action to foreclose the mortgage, another gas-light company, which had succeeded to the rights of the mortgagor, set up a counter-claim in substance, that A., the real principal for whom plaintiff acted, and certain associates of his who were stockholders of defendant, and in certain other gas-light companies, all of which were interested in certain patents, requested and instigated defendant to make experiments to test the value of such inventions, and by the aid of such services the other corporations were enabled to sell the rights owned by them for a large price. Defendant did not allege any express agreement or promise to pay for such services, but claimed an implied promise from the fact of the request and the benefits derived. Held untenable; and that the facts did not constitute a counter-claim.</p> <p>A promise to pay for services may only be implied by the courts, where they were rendered under such circumstances as authorized the party performing to entertain a reasonable expectation of payment by the party soliciting performance.</p> <p>Defendant, the mortgagor, executed a perpetual lease of its property to another corporation, to which was transferred also all of its capital stock,' and said other company assumed the payment of the mortgage ; it attached certain fixtures to the mortgaged real estate, which it claimed, under the rule applicable between landlord and tenant, were not subject to the lien of the mortgage, Held untenable ; that said lessee was for all practical purposes the actual owner of the property, the nominal lessor simply holding the title as trustee, and so the rule did not apply, and the fixtures when annexed became part of the realty.</p> <p>The said lessee after it took possession laid additional mains and pipes, which were affixed to the mains laid by the mortgagor, but at points remote from the mortgaged real estate. Meld, that they did not become changed in their nature as personal property by such attachment and were not subject to the mortgage.</p>

(Reported below, 26 Hun, 282.) The nature of the action and the material facts are stated in the opinion. The original franchise granted to the city of Hudson, in the charter of 1875, conferred an exclusive privilege and included the right of ferriage across the river both ways. (Columbia Br. Co. v. Yeisse, 38 N. J. Law, 39-42; Mayor, etc., v. N. E. Trans. Co., 14 Blatchf. Cr. C. 159, 168; Woolrych on Ways, 217; B. & H. Ferry Co. v. Davis, 48 Iowa, 135, 137; 1 Abb.