Volume 55 — Sickels

(Mem. of decision below, 36 Hun, 456.) The action was for partition; the parties claimed under the title of John McKie, who died in 1828 seized of the premises, leaving a will by which he devised said premises to his five children named, “their heirs, executors, administrators and assigns forever, share and share alike.” After various other provisions, the will contained the following: “ Item.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff, in crossing a street in the city of New York, upon a crosswalk, fell and was injured; one of the stones of the crosswalk was and had been for over a year misplaced, and this occasioned the accident. The further material facts appear in the opinion.

(Reported below, 29 Hun, 243.) This action was brought upon a promise contained in a letter written by defendant to plaintiff in October, 1872; of so much of the letter as is material the following is a copy: “You will find inclosed $100, with interest, which you so kindly loaned me one year ago, and I hope and trust I shall shortly be able to inclose you $1,000, which you also kindly loaned me, hoping at the same time you may have no need of it until such time as I shall be…

This action was brought by plaintiffs, composing the firm of Baker & Wilson, to recover the amount of a check drawn upon defendant by “ C. A. Wilson & Bro., agents.” The .drawers were commission merchants; they became insolvent in October, 1878, and, thereafter, to protect their principals, among whom were plaintiffs, opened a deposit account with defendant in the name of their firm, adding the word “ agent,” to the credit of which account they deposited the proceeds of the…

This action was brought to recover the purchase-price of a certain personal property, which came into the hands of plaintiff as executrix of Charles Thompson, who died insolvent. Defendant set up as a counter-claim a promissory note, executed by the decedent to him. This was not allowed by the referee. This action cannot be maintained by plaintiff in her individual name. (Code of Civ.

<p>Plaintiff made application to defendant for insurance upon the cargo of a vessel, the premium to be at the rate fixed and on the same terms granted by another insurance company named. The application was accepted by ^defendant. It was the custom on such an application for the insurer to issue a policy in from ten to twenty days, on payment of the premium or delivery of a note of the insured therefor. Within twenty days after the application plaintiff became insolvent and made a general assignment for the benefit of creditors. Thereupon defendant’s brokers notified plaintiff and his assignees that it would not be bound unless the premium was properly secured; they took no steps in that direction, paid no premium, tendered no note, and did not demand a policy, but took part in procuring a new and different insurance upon the cargo, and no claim was made for over seven years under the agreement. In an action upon said agreement, held, that under it the insurer was bound to issue a policy in the usual and ordinary way, and within the usual time, but only upon payment by the insured of the premium or his giving the customary note, and either party, upon the refusal of the other to perform, could treat the refusal as an abandonment, and by joining therein could terminate the contract; that while the insolvency of defendant did not per se terminate the contract, it gave the insured an equitable right to demand and receive a note of some responsible party, or payment of the premium in cash, and the default of plaintiff in not so paying or securing the premium, after notice that it was required, accompanied by the failure of himself or assignees to demand a policy or take note of its absence, and their action in procuring other insurance justified the insurer in inferring an intent on their part to terminate the contract which its concurrence made effective.</p> <p>Defendant presented an account to plaintiff, in which was charged an item of premium which referred to the insurance in question or that of the cargo of another vessel which arrived safely, where the agreement was similar and no policy was issued ; it was not proved, however, that it related to the former. Held, in the absence of such proof, it could not be urged as a recognition of that insurance as a subsisting contract and a waiver of plaintiff’s default; and that from the fact there had been a breach of another similar contract it did not follow that there was a mutual abandonment of it as in this case, or because default had been waived in that case that it had also been in this.</p>

<p>The D. L. & W. R. R. Co. shipped on board a boat owned by plaintiff a load of coal which by the bill of lading he agreed to transport to N. H. and deliver to the consignees “ or their assigns (dangers of the sea excepted), they paying freight.” While en route and in tow of another vessel a storm arose, the boat was cast loose, and the captain having attached a buoy to her, left her and she sank. The boat and cargo were insured in separate companies, the latter by defendant. Plaintiff notified the insurers of the “ misfortune,” claiming a total loss ; his policy, however, provided that the insured should not have a right to abandon the boat, except in case of absolute total loss, and" that the acts of the parties in saving the property insured, in case of disaster, should not be considered as a waiver or acceptance of an abandonment, but should “be considered-as done for the benefit of all concerned and without prejudice to the rights of either party.” The insurers refused to receive the loss and notified plaintiff that they intended to raise the boat. The owners of the coal “ sold, abandoned and set over ” their interest in it to defendant ; which company, in connection with the insurer of the boat, entered into a contract with a wrecking company, by which the latter agreed to raise the boat and cargo and deliver them alongside dock in N. H. for a sum specified. The contract was performed by the wrecking company, save a few tons of coal on deck, which were lost, and plaintiff was notified by the insurer of the boat to go to H. H. and take charge of it. The loss was treated and settled as a partial one, and plaintiff paid the expense of recovery. He notified defendant of his claim for freight and forbade the removal of the cargo until it was paid. The defendant, however, removed and sold the coal. In an action for a conversion of the coal, plaintiffs complaint was dismissed. Held (Ruber, Ch. J., Baud and Finch, JJ., dissenting) error; that as payment of freight was made a condition of delivery, the cargo became bound, until, by some default or some event which put an end to the voyage, it became impossible to fulfill the contract, and as the coal in fact reached the port of destination, the contract to carry was apparently fulfilled by plaintiff, and that for delivery would have been, but for the interference of defendant; that neither it nor the original owner of the coal had the right to take it until payment of freight ; that an abandonment of the cargo by the shipper could not affect the boat, and as to it there was no abandonment consummated ; that the voyage was not lost, and under the stipulations of the policy the recovery of the boat must be considered for the benefit and on account of the owner ; that unless voluntarily relinquished by plaintiff, the legal possession which he had of the cargo continued after the accident; and at most the question as to whether or not there was such a relinquishment was one of fact for the jury.</p>

This action was upon an alleged covenant contained in a deed from Hugh Tunny to defendant. The clause in the deed in question is as follows: “ This conveyance is made subject to two certain mortgages of $4,000 each, which the party of the second part assumes, with interest.” Plaintiff as owner of the mortgages and accompanying bonds foreclosed the same, and claimed to recover herein a deficiency arising on sale.

The motion to dismiss was made upon the ground that the notice of appeal was not served within sixty days after service of notice of judgment and copy thereof. Defendants claim the notice to be defective and insufficient to limit the time to appeal. The material facts are stated in the opinion.

<p>A village incorporated under the act of 1870 (Chap. 291, Laws of 1870), by the act of incorporation assumes the duty of caring for and repairing its streets, and for its neglect to do so is liable to a party injured.</p> <p>It is no defense, therefore, that the defect complained of existed at the time of the incorporation, or that the municipality has omitted to make ordinances or by-laws in reference to repairing its streets.</p> <p>Where numerous exceptions appear in a case, most of which are untenable, but some one of them may be sustained by reason or authority, the attention of the court should be specifically called thereto; it is not sufficient to group them all together in the points of counsel under a single allegation of error, without stating a ground to support any one.</p>

This action was brought to recover moneys alleged to have been received by defendants for and on account of the plaintiff’s company. The evidence was to the effect that' James Warrack, plaintiff’s agent at Chicago, received from parties in that city certain merchandise to be transported to Antwerp.

The nature of the action and the material facts are stated in the opinion. The burden of proof rests upon those who rely upon the estoppel to show all the facts in regard to the identity of the issue and of the parties. {Duchess of Kingston's Case, 2 Smith’s L. C. 784; Broom’s Leg.

<p>As the comptroller’s deed, on sale of non-resident lands for taxes, is made by statute (§ 65, chap. 437, Laws of 1855) presumptive evidence of the regularity of all proceedings necessary to authorize him to make the sale and give the deed, the burden of proof is upon the party questioning the title of the grantee of showing by affirmative evidence that in the proceedings under which the sale was made some material requirement of the statute has not been complied with or has been defectively performed.</p> <p>A return by a town collector or county treasurer of unpaid taxes on lands of non-residents is not evidence of the contents of the assessment-roll; and so, is insufficient to establish an alleged invalidity in the assessment.</p> <p>It is not essential that in the list of lands chargeable with the payment of taxes and interest transmitted by the comptroller to the county treasurer, it should be stated that the lands are so charged. A statement in the list that the lands are liable to be sold for the taxes therein referred to and that they will be sold for such taxes and interest is a sufficient compliance with the statute (§ 84).</p> <p>In an action of trespass where the question was as to the validity of a title under a comptroller’s deed the proof of publication in the State paper of notice of sale to take place November 13, 1866, showed that it was published “ once in each week for ten weeks successively, commencing on the 20th of July, 1868, and ending 21st September, 1866.” Held, the proof sufficiently showed publication for the “ space of ten weeks ” as required by the statute (see Code of Civ. Pro., § 425); that a publication on the first day of the tenth week covered the whole week.</p> <p>Where a weekly publication of a notice is required, it is not necessary to show publication on the same day of each week ; it is sufficient if made on any day of each week for the requisite number of weeks.</p> <p>It was claimed that the return of the town collector to the county treasurer of unpaid taxes for the year in question was defective, in that it did . not show the amount of tax on the land sold. To prove the return a paper purporting to be a copy of said return which was obtained from the comptroller was produced- in evidence ; it was accompanied by two certificates of the deputy comptroller, neither of which stated that the paper was a copy of the whole original, but in substance that it was a correct copy of all contained in the original, relating to the land in question. Held, that the evidence was insufficient.</p> <p>It is not the province of the deputy comptroller to certify as to what is, or what is not material to a question pending in a legal tribunal ; he has power to certify to the correctness of copies of official papers in the comptroller’s office so as to make them evidence, but beyond that his certificate has no effect. " .</p>

(Reported below, 29 Hun, 232.) The nature of the action and the material facts are stated in the opinion. The contract of service sued upon is an entire contract. (Wood on Mast, and Serv. 167, § 84; id. 201, § 103 ; McMillan v. Vanderlip, 12 Johns. 165 ; Reap v. Moor, 19 id. 337 ; Jenkins v. Wheeler, 3 Keyes, 652 ; Cutler v. Powell, 6 Term R. 320; 2 Smith’s Lead.

This action was brought to recover damages for an alleged breach of a contract. The contract in question was made in February, 1875. By it defendants agreed to deliver to Pardee four hundred thousand feet of basswood lumber between April 1 and September 30,1875, at a stipulated price.

(Mem. of decision below, 17 J. & S. 497.) This action was brought, among other things, to recover damages for an alleged breach of contract to receive and pay for four hundred thousand brick, at a stipulated price.

This action was upon a guaranty by defendants of payment of a bond and mortgage executed by one Prentice. Defendants set up as a defense among others a release by means of an agreement made without their knowledge or assent between plaintiff and the mortgagor, to extend the time of payment in consideration of the giving by the latter of a chattel mortgage as additional security. The referee found that there was no valid agreement to extend the time.

<p>Under the provisions of the Revised Statutes (3 R. S. 388, § 71), and it seems under the provisions of the Code of Civil Procedure (§ 73), prohibiting an attorney from buying directly or indirectly, or being interested in the purchase of a thing in action “with the intent and for the purpose of bringing an action thereon,” when the purpose of such purchase is to bring an action, and is induced by the procurement of an attorney, it comes within the act, whether the transfer be taken in his name or that of another person, and no cause of action can arise out of a transfer thus prohibited.</p>

an order made March 20, 1883, which affirmed a judgment in favor of defendants, entered upon a verdict directed by the trial court. This action was brought to recover damages for the alleged conversion of a promissory note.

Appeaí from judgment of the General Term of the Supreme Qourt, in the fourth judicial department, entered upon an order made April 14, 1883, which affirmed a judgment in favor of defendants, entered upon a decision of the court' on trial at Special Term. The nature of the action and the material facts are stated in the opinion.

<p>While a street railroad corporation has the right to remove snow from its tracks, it is bound to exercise reasonable care and diligence in so doing, -and if it negligently causes such an accumulation upon the street of the snow thus rémoved as to produce an obstruction therein, rendering travel unsafe, it is liable for inj uries caused thereby.</p> <p>It seems the same duty is imposed upon them as is incurred by every owner of property adjoining the street who removes snow from his sidewalk to the street.</p> <p>Whatever obligations may be imposed upon a municipal corporation in exercising a supervisory" care over its streets, and in preventing and removing obstructions, this does not relieve the owner of property or of franchises from liability for inj uries occasioned by them, and continued by reason of their negligence.</p> <p>It is the duty of such a corporation, so far as practicable, to furnish safe and proper access to its cars.</p> <p>In an action to recover damages for injuries alleged to have been caused by defendant’s negligence, plaintiff’s evidence was to the effect that he attempted to enter, by the rear platform, one of defehdant’s cars, which was moving slowly along the street; finding the platform full, he passed along by the side of the car to reach the front platform; there was a ridge of snow, about three feet high, along the track, thrown up by defendant's snow-plow and sweepers, sloping toward the car, and so near it as to leave merely room for the car to pass; this ridge had been there for some weeks, and had become hard and slippery. At the time of the accident it was covered with a thin coating of recently-fallen snow. In passing along it, plaint iff slipped and fell under the wheels of the car, and was injured. Held (Earl, J., dissenting), that the evidence justified the submission to the jury of the question as to defendant’s negligence ; also as to contributory negligence on the part of plaintiff.</p> <p>Defendant ran its cars for a portion of its route over the track of another railroad company, under a license, by which the licenser was bound to keep the track clear from snow. Defendant claimed that the accident occurred upon this track. Held, that conceding this to be so, as defendant contributed in throwing up the snow-bank, it was its duty to remove it, as it rendered the access to its cars unsafe ; and for a negligent omission to perform this duty it was liable.</p> <p>Defendant set up a release executed by plaintiff soon after the injury; there was testimony showing that plaintiff, at the time he signed the release, was mentally incompetent to appreciate the character of the instrument. Held, that the question as to the validity of the release was properly left to the jury,</p>

<p>The parties entered into a contract by which plaintiffs agreed to sell and defendant to purchase about five-hundred tons, of “ No. 1 Eglinton Scotch pig iron for shipment in March, 1.880, from Great Britain to New York, by sail or steam vessels at seller’s option, deliverable ex vessel on arrival.” Plaintiffs shipped no iron in March, but in April they secured the option to purchase five hundred tons of iron of the kind specified, shipped by another party in March ffom Great Britain and then on its way to New York. When it arrived plaintiffs notified defendant that his iron had arrived and offered to deliver it under the contract. Defendant refused to accept it or to give any instructions in regard to unloading; plaintiffs subsequently made a contract for the .purchase of the iron. It is the custom in the port of New York, when iron is unloaded, for the custom-house weigher to weigh and the buyer who has purchased “ ex vessel ” must take it as it passes from the vessel. This iron was so weighed and then warehoused. Plaintiffs notified defendant of the fact and sent to them the warehouse receipt and weigher’s return, which papers defendant returned and declined to receive the iron under the contract on the ground that it was not shipped by plaintiffs. In an action to recover damages for breach of the contract, held, that the contract did not limit plaintiffs to iron shipped by them, and the reason for the refusal to accept was, therefore, untenable.</p> <p>While the seller is limited to the description of the goods in such a contract and the buyer is not bound if there is a variance, even in a stipulation entirely unimportant, a liberal construction of the language used will not be resorted to, to import into the contract such a stipulation, nor will it be considered as included if there is a reasonable doubt as to the intent of the parties to include it.</p> <p>Also held, that there was a sufficient offer of performance on the part of plaintiffs to put defendant in "default.</p> <p>Cunningham v. Judson (30 Hun, 63), reversed.</p>

(Reported below, 29 Hun, 195.) This action was brought to recover damages for an alleged breach, on the part of defendant, of a contract for the purchase by defendant, and sale by the plaintiff, of certain real estate. The sole defense was that the land was subject to the lien of certain legacies imposed by the will of Hiram Smith, who died seized of the premises in March, 1881.

Said defendant claimed, as owner of the equity of redemption, the only other claimant was Agnes Misland who claimed to be entitled to a portion thereof, as lessee of the mortgaged premises, bic proof was made by the lessee as to the value of the leasehold estate. The surplus arising on a foreclosure stands in exactly the same position as the land.

(Reported below, 36 Hun, 579.) This action was upon a bond executed by defendant, Giles S. Brisbin, with the other defendants as sureties, given in pursuanee of an order of the surrogate, conditioned that said Giles S. Brisbin, as executor and trustee under the will of Catherine S. Bailey, should faithfully discharge the trusts, and obey all lawful decrees and orders of the surrogate touching the administration of said estate.

<p>Where the parties, in settlement of a disputed claim, agree upon the amount due, and the' one against whom the claim was made executes a written agreement to pay the sum so fixed, in an action upon the agreement he is precluded from setting up as a defense that nothing was in fact due.</p> <p>A mere threat to sue upon a claim, and to arrest the person against whom it is made in such suit, or by virtue of an execution which maybe issued upon a judgment obtained therein, is not such duress as will avoid a promise to pay the claim, induced by the threat.</p> <p>Where it is claimed that a promise was obtained by duress, and it appears there was no arrest and no actual force used, but simply threats, the question as to duress is ordinarily one of fact, and may not be determined as one of law.</p> <p>It is not sufficient to establish duress to show that the threats were uttered, it must be shown that they constrained the will of the promisor, and so induced the promise.</p>

This action was brought by plaintiff as receiver of the Illuminated Tile Company, a manufacturing corporation, to recover a sum alleged to have been collected by defendant as president of said corporation upon a note owned by it, and to have been converted by him to his own use. It appeared that the defendant formerly held a demand against the corporation of which he was president, for moneys loaned to it; this he assigned to his son George L. Nichols.

<p>Where a suit is discontinued after judgment, the adjudication concludes no one and is not an estoppel or bar in any sense.</p> <p>Where, therefore, after judgment in an action for foreclosure in which a grantee of the mortgaged premises, who by his deed assumed and agreed •to pay the mortgage and who appeared, and defended was sought to be and was held liable for any deficiency, the court, on application of plaintiff, granted to him leave to discontinue the action and to bring an action upon the bond, accompanying the mortgage; and where, to such new action, the grantee was made a party defendant, held, that he was not precluded from contesting his liability by the judgment in the foreclosure suit, but was entitled to show an entire or partial failure of consideration for his agreement to assume the mortgage, or any defense, complete or partial, which he could have interposed to an action brought by his grantor to enforce said agreement.</p> <p>Also held, that after the trial court had decided as matter of law that said grantee was estopped by the former adjudication, to avail himself of the error, he was not bound to offer any evidence.</p>

Also motion to substitute James Dowdle, receiver, as defendant. The material facts are stated in the opinion. The receiver in supplementary proceedings of the defendant’s property cannot be substituted for the defendant as a party to the action; and, therefore, he cannot appeal. (Code, §§ 1296, 682 ; Honegger v. Wettstein, 94 N. Y. 252.) The defendant had a right to make the stipulotion for the dismissal of the appeal. It is not in any sense an interference with his property.

<p>An absolute authority to draw is equivalent to an unconditional promise to pay a bill of exchange; and the authority need not be phrased in the precise and formal language of a legal document.</p> <p>In an action upon certain bills of exchange drawn upon defendants at New York by the firm of Van A. & Co. of Havana, and sold by the drawers to plaintiffs, the latter were allowed to prove, under objection and exception, in substance, that prior to the drawing of the bills in question, defendants had agreed with Van A. & Co. to accept their drafts at sixty days, to be covered at maturity by renewing the drafts, the whole amount of credit to be paid during the next season ; certain of these drafts, which defendants had accepted to the amount of $37,000, being about to mature, Van A. & Co. wrote to defendants, in substance, that they would be unable to settle their debt during that season, and asked to have their drafts and remittances continued as before until the next crop. The method of procedure agreed upon and practiced for renewal was for Van A. & Co., before the maturity of a draft, to draw on defendants at sixty days, sell the draft and remit the proceeds to take up the draft maturing. To this letter defendants replied, postponing an answer as to the credit requested until the return of an absent partner, adding: “ In the mean time we rely upon the renewal ot the $87,000.’" Van A. & Co. drew upon defendants for $15,000, sold the draft, and remitted the proceeds. Defendants cabled : “ Why only $15,000 ; must send $22,000 first steamer.” Van A. & Co. thereupon drew for the latter amount, and sold the drafts, which were the ones in suit, to plaintiff, defendants’ letter having been shown to him, and he purchasing in reliance thereon. The proceeds -were remitted to and received by defendants. Held, that the evidence was properly received ; that the letter read in the light of the surrounding circumstances was explicit, and plainly authorized the drawing of the drafts, and that defendants were liable thereon.</p>

(Reported below, 17 J. & S. 134.) This action was brought among other things upon an instrument in writing executed by a firm, of whom defendant is the surviving partner, and delivered to S. K. Ashton, plaintiff’s assignor, at the time of the delivery to said firm of. the amount of money stated therein. “ $4,000. Office of J. R. & H. B. Fby, ) 134 South Thibd Stbeet, > .

4, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover damages for injuries sustained by plaintiff alleged to have been caused by defendant’s negligence. Defendant was engaged in constructing a sewer in the city of Buffalo, and used a steel cable in connection with a derrick and steam engine to hoist the earth and rock from the excavation.

This was an action of ejectment. The material facts are stated in the opinion. When after a devise or bequest in language denoting an absolute gift of the whole estate in fee there is, in a subsequent part of the same will, a limitation over in the event of the first devisee dying under age and without issue, the gifts are not repugnant to each other, but thelatter is a valid executory gift.

(Reported, below, 33 Hun, 368.) ' This action was. brought to obtain a judicial construction of the will of Caroline McClure. Said Caroline McClure died in the month of November, 1882, leaving a will, which was thereafter proved as a will of real and personal estate, and letters testamentary thereon were issued to defendant John McClure, her husband, one of the executors named in said will, who duly qualified and entered upon his duties as such executor.

<p>In constructing a bridge over the Brie canal in the village of L. F., the State built a wing or retaining wall north of and parallel with the canal; the boundary line of the State lands was about twenty-one inches north of the wall. The village subsequently laid out a street along the northerly side of the canal; the description in the ordinance included said retaining wall and the strip of State land north of it, and said strip was subsequently used as part of the street. There was no railing or guard along the wall, and plaintiff’s intestate in driving along the street on a dark night drove so far south that he,"with his team and wagon, was thrown over into the canal, and he was drowned. A railing on the wall would have prevented the accident. In an action to recover damages, held, that the attempt on the part of the village to appropriate a part of the State lands for the street was a nullity; that the village had no legal right to put a railing on the wall, and no legal negligence could be predicated of an omission so to do, or of a failure of the village to obtain permission of the State to erect such a barrier.</p> <p>Sewell v. City of Cohoes (75 N. Y. 45), distinguished.</p> <p>It was claimed by plaintiff that defendant should have erected a barrier north of the wall outside of the State property. It appeared that at the west end of the wall there was a space of only eight and one-half feet for teams to pass. Had a barrier been placed on the line of the State lands the traveled way would be but about six and one-half feet. Defendant’s counsel asked the court to charge, if the jury found that a railing or guard north of the wall outside of the State property would he dangerous to the traveling public, the village authorities were not negligent in failing to build it. This was refused. Held error.</p>

The particulars in which the order was modified, and the material facts pertinent thereto, are stated in the opinion. This action is one based on contract and is exclusively within the jurisdiction of the State courts, the parties being residents of the State.

The nature of the action and the material facts are stated in the opinion. The policy was unassignable. (Brummer v. Cohn, 86 N. Y. 11; 57 How. 386.) It could not be levied upon in a creditor’s suit. (Code, 1411, 1412; 2 R. S. 273, §§ 38, 39; Campbell v. Foster, 35 N. Y. 366, 370; Graff v. Bonnett, 31 id. 9; 35 id. 371; Hains v. Van Voorhis, 15 Abb. [N. S.] 79.) The argument that this policy is to be governed by the law as it stood when it was taken ont is fallacious.

This action was brought to set aside, as a cloud on plaintiffs title, a tax deed of the county treasurer of the county of Onondaga to defendants of certain lands situate in the city of Syracuse. The material facts are stated in the opinion. The assessment made of plaintiffs lands is void.

(Reported below, 22 Hun, 419.) The nature of the action and the material facts are stated in the opinion. Defendant was bound to render a faithful account, and King had an absolute right to suppose he would fulfill his obligation.

This action was for the alleged conversion of certain personal property. The material facts are stated in the opinion. When the distraint and sale of the property described in the complaint was made the plaintiffs were the absolute owners, and entitled to the immediate actual possession thereof.

This action was upon a policy of fire insurance. The material facts are stated in the opinion. The position of the plaintiff that Kennedy & Buell were not his agents in respect to the insurance after the policy had been delivered by them to him is untenable. (Standard O. Co. v. T. Ins. Co., 64 N. Y. 85.) The agency of Kennedy & Buell must, therefore, be regarded as a continuing one in reference to the insurance.

(Mem. of decision below, 30 Hun, 299.) This was an action upon a policy of fire insurance issued on the 18th of December, 1878, by which plaintiffs were insured by the defendant against loss by fire, on certain described property. Plaintiffs also held policies of like character issued by other companies, to the amount, including the one in question, of $16,000.

<p>To give to a littoral proprietor title to land by accretion, the increase must be by such imperceptible degrees that, although persons are able to perceive from time to time that the land has encroached on the sea line, they could not perceive the progress at the time it was made.</p> <p>While the title of such a proprietor is liable to be lost by erosion or submergence, the erosion to effect that result must be accompanied by a transportation of the land beyond the owner’s boundary, and it may be returned by accretion, in which case the ownership temporarily lost may be regained; and so, land lost by submergence may be regained by relictian, unless the submergence has been followed by such a lapse of time as precludes the identity of the land from being established.</p> <p>If, after a submergence, the water disappears from the land either by its gradual retirement or the elevation of the land by natural or artificial means, the proprietorship returns to the original owner.</p> <p>No lapse of time during which the submergence has continued bars the right of the owner to enter upon the land reclaimed and assert his proprietorship when the identity can be established by reasonable marks, or by situation, extent of quantity and boundary on the firm land.</p> <p>And so if an island forms upon the land submerged, it belongs to the original owner. The sovereign succeeds to the ownership of such islands and formations only as are originally created and located in tide-ways outside of the boundaries of property which has been the subject of individual ownership.</p> <p>The owners of adjacent uplands are entitled to lands formed by accretion or reliction in. front of and contiguous to their property in certain pro- . portions according to the formation of their respective shore lines. However such formations may be commenced or continued, the right of one owner of the uplands to follow and appropriate them ceases when the formation passes the line of his coterminous neighbor.</p> <p>In an action wherein the question was as to the ownership of a portion of the ocean beach at Far Rockaway, Long Island, it was conceded that the beach in question was within the boundaries, and, with the exception of a lagoon now between it and the upland, is in the same shape as it was in 1685, when it was conveyed by its Indian owners to grantees under whom plaintiff claimed. Some three or four miles east of this land was an island named Long Beach, bounded on the east by an inlet from the ocean to Hampstead bay. No substantial change occurred up to 1835; from that time up to 1869 the beach from opposite the island to the west of plaintiff’s land underwent a succession of changes; it was overflowed and washed away, bars, shoals and islands were formed and were constantly undergoing changes. Portions of the beach in front of plaintiff’s lands were submerged, but at all times there were bars, shoals or islands. The inlet was removed to the west of plaintiff’s land, not by gradual progression, but by sudden, frequent and violent changes, in the end forming a continuous bar from Long Beach to a point west of plaintiff’s land. About 1869 the inlet to the west became closed up, and the original one adjoining Long Beach was reopened, leaving a continuous beach to the westward, with a narrow lagoon or cove inside of it running across plaintiff’s land and separating the beach from the mainland. Long Beach belonged to the town of Hempstead. Defendants claimed the right to the possession of the beach in front of plaintiff’s mainland under a lease from said town. Held, that the town acquired no title to the beach in question, but that the title 'thereto was in plaintiff.</p> <p>The complaint alleged, among other things, and it appeared that plaintiff was the owner of a hotel upon his premises resorted to by visitors for surf-bathing and sea air, which, required undisputed control of the beach in question, and prevented the exclusion of intruders by any substantial barriers; the beach he had leased to tenants, who maintained bathing-houses thereon. Defendants, claiming under said lease, had made repeated efforts to take possession of the beach, and threatened to oust plaintiff and his tenants, thus impairing the rental value of the property and occasioning serious damage; that defendants were not of sufficient pecuniary responsibility to respond in damages. Held, that a case was established authorizing the intervention of a court of equity to quiet the title and to restrain defendants from interfering with .plaintiffs possession.</p>

Appeal by defendant, Mary S. Van Beuren, from a judgment of the General Term of the Superior Court of the city of Rew York, entered upon an order made February 5, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

This action was brought to restrain defendant from erecting a fence which the. complainant alleged defendant threatened to build in an alley-way between and partly upon the lots of each. The answer admitted the intent to erect the fence, but claimed the right as owner of the land to inclose that portion of the alley upon her lot. The facts so far as material are stated in the opinion.

<p>Appeal from, judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 3,1883, which affirmed a judgment in favor of plaintiffs entered upon an order overruling a deuiurerer to plaintiffs’ complaint. (Reported below, 30 Hun, 129.)</p> <p>This action was brought to recover damages for an alleged breach of covenant for quiet enjoyment contained in a deed.</p> <p>The material facts are set forth in the opinion.</p> <p>To constitute a breach of this covenant of quiet enjoyment there must be an eviction or ouster from the possession of the whole or a part of the premises. (Greenby v. Wilcocks, 2 Johns. 1; Kent v. Welch, 7 id. 258 ; Blydenburg v. Cotheal, 1 Duer, 176 ; Cruise, 378, note; 2 Greenl. Ev. 460; Rindskopf v. F. L. & T. Co., 58 Barb. 50; Emerson v. Propers, Etc., 1 Mass. 464; Marston v. Hobbs, 2 id. 437; Kelly v. Dutch Church, 2 Hill, 105; 4 Kent’s. Com. 471; Wood v. Forncrook, 3 T. & C. 303; Parkinson v. Sherman, 74 N. Y. 93; Sweetmam v. Prince, 26 id. 233.) An eviction is “ an actual dispossession, under a lawful claim by a paramount title.” (Kent v. Welch, 7 Johns. 258; Fowler v. Poling, 6 Barb. 165 ; Miller v. Watson, 5 Cow. 194; Talliard v. Wallace, 2 Johns. 395.) An ouster is an actual deprivation of the possession of a part of the land, or what is equivalent, a title which is capable of being used to deprive the grantee of his possession of a portion of the land covered by his deed.' (McMullin v. Wooley, 2 Lans. 395.) Enforcing an easement upon the property is not an eviction. ( Whitbeck v. Cook, 15 Johns. 484; Mitchell v. Warner, 5 Conn. 407; McMullin v. Wooley, 2 Lans. 393; Rawle on Covenants of Title, 114,115; 4 Kent’s Com. 471, note; 1 Duer, 196,197; Willard on Real Estate, 414; 1 Pars, on Cont. 110, 190, 200, note r ; Firrel v. Alder, Humph. 44; U. S. Ann. Dig. 1849,122, No. 73.) The paramount character of Douglass’ title is not shown by his judgment, the defendant not having been a party or privy to it. (Cowdrey v. Coif, 44 N. Y. 382; Abb. Trial Ev. 519.) Under the general word “ appurtenances,” nothing is included that is not actually and legally appurtenant to the land, and nothing that the grantor does not own or has not a right to convey. (Green v. Collins, 86 N. Y. 246; 26 Hun, 477; Philbrick v. Ewing, 97 Mass. 133.) The covenant, therefore, extends only to the land granted, and to those things which, as matter of legal right, belong to and pass with it. (2 Washb. on Beal Prop. 655, 607; Burke v. Nichols, 2 Keyes, 670.) The owner of a water-mill has an easement in the land below, for the free passage of the water from the mill, in the natural channel of the stream, accompanied with a right to enter upon the land for the purpose of clearing out the stream and removing obstructions to the free flow off the water. (AngelL on Water-Courses, note 3 to § 337; Prescott v. Williams, 5 Metc. 429 ; Cary v. Daniels, id. 236; 4 U. S. Dig. [supplement], 604, Nos. 30, 34; Adams v. Conover, 87 N. Y. 422.) Mere limitations or restrictions upon the use of the land are not evictions. The title remains in the grantee, and the possession. The easement may be a great incumbrance. But a covenant of warranty is not a covenant against incumbrances. And a covenant of quiet enjoyment is practically the same as a covenant of warranty. (Boreel v. Lawton, 90 N. Y. 296; Rawle on Covenants of Title, 144; Whitbeck v. Cook, 15 Johns. 483.) Since the burden of proof is upon plaintiffs to show ignorance of the nature and extent of Douglass’ rights when they purchased, as against the presumption of knowledge on their part an averment of ignorance is material and without it the complaint is defective. (Bennett v. Buchan, 76 N. Y. 386; Hymes v. Esty, 36 Hun, 147; Williamson v. Brown, 15 N. Y. 354; Reed v. Gannon, 50 id. 345; Pendleton v. Gray, 2 Paige, 202; Hawley v. Cramer, 4 Cow. 717; Baker v. Bliss, 39 N. Y. 70; Brown v. Volkening, 64 id. 76; Kellogg v. Smith, 26 id. 318; Youngs v. Wilson, 27 id. 351; Sigourney v. Mann, 7 Conn. 324; Abbott’s Trial Ev. 520, under Covenants for Title, citing Spoor v. Green, L. R., 9 Ex. 99; 8 Moak’s Eng. Rep. 540; Oldfields v. Round, 5 Ves. 508; Dart on Vend. and Purch. 369.) Parol-evidence of existing defects may be given to limit the extent of a covenant. (Bennett v. Buchan, 76 N. Y. 391; Jennings v. Chenango Co. Mut. Ins. Co., 2 Den. 75 ; Bidwell v. N. W. Ins. Co., 24 N. Y. 302; Van Schaick v. N. F. Ins. Co., 68 id. 434.) Such evidence is not admissible to extend the terms of the covenant. (Green v. Collins, 86 N. Y. 254; McMullin v. Wooley, 2 Bans. 395; Manning v. Smith, 6 Conn. 289; Gayetty v. Bethune, 14 Mass. 49; Plant v. James, 5 Barn. & Ad. 791.) If a man buys land which is covered with water, the water is not necessarily even an incumbrance, in the legal sense of the word; and it is not a breach of a genuine covenant against incumbrances, that, prior to the conveyance, the grantor himself had lawfully erected a dam and thereby caused water to flow upon the granted premises. (Kidder v. George, 18 N. H. 511; Kurtz v. McCune, 22 Wis. 628; Alexander v. Kerr, 2 Rawle, 83; Knapp v. White, 23 Conn. 529; Stetson v. Veazie, 11 Me. 408.) A lease, with its covenants, rights, privileges and obligations, extends only to the premises demised, and does not apply to other property, whether adjoining or not. (Johnson v. Oppenheim, 55 N. Y. 280; White v. Mealio, 37 N. Y. Super. 72; Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw. 127; Myers v. Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Kramer v. Cook, 7 Gray, 550; Williams v. Hayward, 1 El. & El. 1040; Kurtz v. McCune, 22 Wis. 627; Sabine v. Johnson, 35 id. 185; Smith v. Hughes, 50 id. 620.)</p> <p>Upon a conveyance of land, whatever is in use for it, as an incident or appurtenance, passes with it, whether the words “ with the appurtenances ” are used or omitted. (Huttemier v. Albro, 18 N. Y. 48 ; Comstock v. Johnson, 46 id. 620; Voorheas v. Burchard, 55 id. 102; Simmons v. Cloonan, 81 id. 557 ; Green v. Collins, 86 id. 253 ; Adams v. Conover, 87 id. 422; Corning v. T I. & N. Factory, 40 id. 191; Brown v. Bowen, 30 id. 519; Pixley v. Clark, 35 id. 521; Stout v. Adams, 2 Scam, [Ill.] 67.) The covenants in a deed are designed to protect the grantee in the enjoyment of his property, in the manner and for the particular purpose intended by the parties at the time of executing the deed. (Adams v. Conover, 87 N. Y. 428 ; Comstock v. Johnson, 46 id. 615; Voorhees v. Burchard, 55 id. 102; Green v. Collins, 86 id. 246; Rawle on Covenants for Title [4th ed.], 181; Peters v. Grubb, 21 Penn. St. 455 ; Wilson v. Cochrane, 46 id. 229.) Considering plaintiff’s purchase simply as the purchase of a lot of land, it is plain that the exercise of a paramount outstanding right in a third person, to use the said land, or any part of it, for the bed of a mill pond, and to cover it permanently with the waters of a river, accumulated and held by means of a mill-dam situate on the adjoining lot below, is an eviction pro tanto. (Shattuck v. Lamb, 65 N. Y. 503 ; Rea v. Minkler, 5 Lans. 196; Adams v. Conover, 87 N. Y. 422; Russ v. Steele, 40 Vt. 310; Clark v. Conroe, 38 id. 496; Lamb v. Danforth, 59 Me. 322; 1 Bouv. Law Diet. 543; Pumpelly v. G. B. Co., 13 Wall. 166; Eaton v. B. C. & M. R. R. Co., 51 N. H. 185; G. R. B. Co. v. Jarvis, 30 Mich. 321; Hooker v. N. H. & N. Co., 14 Conn. 146; Rowe v. G. B. Corp., 21 Pick. 344 Nevins v. Peoria, 41 Ill. 502; Cooley’s Const. Lim. 542, 545; Canal Comrs. v. People, 5 Wend. 452; Story v. NY. Y. El. R. R. Co., 90 N. Y. 122; Matter of N. Y. Él. R. R. Co., 36 Han, 17.) Any interference by an adjoining owner on the stream, whether above or below, under paramount title, whereby the plaintiffs were permanently deprived of the head of water upon their own premises, as it then existed, is a breach of such covenant and an eviction pro tanto. (Adams v. Conover, 87 N. Y. 422; Rea v. Minkler, 5 Lans. 196 ; Shattuck v. Lamb, 65 id. 510.) On demurrer all reasonable intendments will be indulged in in support of the pleading demurred to. (Lorrillard v. Clyde, 86 N. Y. 384.) A covenant, under seal, cannot be discharged by a paroi agreement before breach. A deed cannot be contradicted in its terms, or legal effect, by paroi evidence. (Suydam v. Jones, 10 Wend. 180; Mott. Palmer, 1 N. Y. 564; Hubbard v. Norton, 10 Conn. 422; Sargent v. Getterson, 13 N. H. 273; Lloyd v. Quimby, 5 Ohio, 165 ; Taylor v. Cillman, 25 Vt. 413.)</p>

Appeal by defendant, Benjamin A. Willis, from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 30,1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term. This action was brought to foreclose a mortgage executed jointly by Benjamin F. Raynor and Edwin F. Raynor, but upon lands owned by the latter, to Mary Griffin.

<p>In 1876 defendant was engaged as a common carrier in transporting goods from Havre, France, to New York city. On November twenty-third of that year one S., who resided in Gourin, France, having received, in answer to inquiries, information by mail from defendant’s agent at Havre as to the charges and conditions of transportation, and also advices that one of defendant’s steamers would sail on the twenty-fifth, proceeded to Rennes and shipped from there, by rail, to said agent a bag of gold having a label attached, directed to the agent at Havre, with these words : “ To forward to Mr. Frank Guillaume. 152 & 154 Bleckert street, New York, Utica, America.” The gold was received by the agent on the twenty-fourth, and placed on board defendant’s steamer, which sailed on the twenty-eighth. On the twenty-sixth said agent wrote to S., at Gourin, inclosing a hill of lading, which stated that the gold was to be transported to New York and delivered “ to M. Guillaume Frank, 152 & 154 Bleckert street, New York.” The bill of lading contained a clause to the effect that the shipper or agent, by accepting the same, submitted to its conditions. It required two days for letters to go from Havre to Gourin. S. sent no reply to the letter, and took no steps to advise defendant of the erroneous statement in the bill of lading. Another bill of lading was sent by defendant to New York, directed to “ Mr. Guillaume Frank, 152 & 154 Bleckert St., in New York.” It fell into the hands of some person to whom, on presentation thereof, and with the representation that he was Guillaume Frank, the gold was delivered. In an action to recover the value of the goldbecause of defendant’s alleged negligence, Jield, that the bill of lading did not, under the circumstances, constitute the contract, as the shipper, had he objected, could not have reclaimed the property; that the retention of the bill by him did not show an assent to the mistake, and at most the question as to whether there was negligence on his part in not notifying defendant’s agent thereof was one of fact; that defendant was bound to deliver the gold to plaintiff in accordance with the directions on the label attached, or to place it, safely where he could obtain it; and that whether it was negligence on defendant’s part in sending the bill of lading to one not entitled thereto, who by reason tiler' jf obtained the gold, was at least a question of fact.</p> <p>Where goods h .ye actually been shipped under an oral contract, the subsequent rece’ t of a bill of lading and neglect of the shipper to point out errors th ein does not preclude him from showing the oral contract.</p>

<p>M. died leaving a will executed the day previous to Ms death, by which, after a bequest to his wife of $1,000, and to Ms son M. of $400, he gave the residue of his estate to his four children, to be divided equally between them. The personal estate left by the testator was insufficient to pay his funeral expenses. In an action to have the widow's legacy declared to be a charge upon the real estate held, that the intent of the testator was that both legacies should be so chargeable; and that the widow, in case the land was insufficient to pay both legacies, was not entitled to a preference in payment, but simply to share pro rata with the other legatee; and this, although he had not claimed his right and denied that the legacies were chargeable on the real estate.</p>

<p>The rule which, excuses a piaster from liability to a servant for injuries, caused by the negligence of a co-servant, presupposes that the master has performed the duties which the law imposes upon him, and that no negligence in this respect contributed to the injury. •</p> <p>Where, therefore, the master has furnished a dangerous and defective machine he is not excused from liability for an injury to his servant, which would not have happened had the machinery been safe and suitable, by the fact that the negligence of a fellow servant co-operated in producing the injury ; and this, although the machine, by the exercise of care and caution, might have been operated so as not to cause injury.</p>

15, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on a trial without a jury. This action was upon three bills of exchange payable to the order of plaintiff’s firm, drawn upon the firm of Hamilton, Nephew & Co., of which firm defendants were the individual members, and accepted by that firm.

Court of the city of Hew York, made February 19, 1883, which reversed a judgment in favor of defendant Hutchinson, entered upon an order dismissing the complaint as to him on trial. (Reported below, 17 J. & S. 50.) The nature of the action and the material facts are stated in the opinion.

verdict directed by the court, and affirmed an order denying a motion for a new trial. This action was upon two policies of insurance issued by defendant, October 18, 1870, upon the life of Wilbur F. Diefendorf, and by him assigned to plaintiffs. The case is reported on a former appeal in 77 N. Y. 564.

This action was brought against defendant as indorser of a joint and several promissory note dated March 19, 1866, for $500, payable on demand, with interest, made by Jacob Niver, James Ham and Norman Niver. Defendant became the owner of the note soon after its execution ; he indorsed and transferred it in April, 1868. Plaintiff became the owner in 1869. Interest was regularly paid upon it by Jacob Niver, one of the makers, up to April, 1875. In 1876 said Jacob Niver died.

<p>Where a party, who is excluded by the Code of Civil Procedure (§ 839) from testifying in his own behalf as to a personal transaction with a deceased person, upon -cross-examination of the adverse party draws out testimony in regard to such transaction, this does not bring him within the exception to the prohibition and permit him to testify; as in such case the adverse party is not “ examined in his own behalf ” within the meaning of the exception.</p> <p>In an action brought by plaintiff as assignee of an account for moneys alleged to have been loaned to defendant by a firm in which C., who died before trial, and plaintiff were partners, in which action, defendant, as a defense, alleged that the moneys were in fact paid to him for services rendered the firm, plaintiff offered in evidence the books of the old firm whereon the account appeared. He was also examined as a witness in his own behalf and testified that neither he nor the company ever authorized any money to be advanced to defendant by way of payment for his services ; in answer to questions on his cross-examination, he testified that he knew there could have been no arrangement between defendant and C., as to payment for defendant’s services, from what C. told witness. Held, that this did not authorize defendant to be examined as a witness as to an arrangement between him and C. under which he received the money in question ; that the cross-examination was not necessary to explain any thing testified to on the direct examination.</p> <p>Lewis v. Merritt (98 N. Y. 306), distinguished.</p> <p>Also held, it was competent for plaintiff to prove that defendant had not been on the pay-roll of the corporation for a number of years.</p> <p>It appeared that defendant had taken out patents for certain machines for making horseshoes, which he had invented. Plaintiff claimed that the firm and corporation had paid all the expenses of manufacturing the machines and various changes in them, under an agreement by which they were to have the use of the machines if the invention proved useful. Defendant claimed that the funds required for his personal expenses were to be included. Plaintiff was permitted to prove, under objection and exception, that large sums were expended in the manufacture which were charged to “ the horseshoe account,” while the moneys in question were charged against defendant in his individual account, which facts were well known to him. Held no error.</p>

The complaint in this action alleged, in substance, that the plaintiffs, together with the defendant Averill, were the executive committee of a political organization in the city of New York known as the Reform Association,” and that the defendant Speir was a candidate for the office of judge of the Superior Court of the city of New York at the election held in November, 1873.

This action was brought to recover damages for alleged breach of an agreement. The defendants, as copartners in business, occupy the premises Nos. 926 and 928 Third avenue, New York city. In December, 1878, they leased the basement of the building to the plaintiff for four years and seven months, at a rental expressed.

This action was brought to recover damages for an alleged breach of a contract to alter over certain premises and fit them for a school, and to execute to plaintiff a lease thereof for a term of years.

The nature of the action and the material facts are stated in the opinion. The defendant was entitled to a suitable allowance for her expenses and counsel fees in this action, and also to a suitable provision for alimony and support for herself and her children, pendente lite and after judgment.

The material facts are stated in the opinion. The relator was entitled to payment of the amount called for by the certificates. (Laws of 1854, 879, § 26 ; Laws of 1862, 196, § 28; Laws of 1873, 1319, § 5; 1324, § 23; 1311, § 20.) The failure to file the certificates in the office of the street commissioner did not deprive the relator of the right to recover the money paid. (Chapmans.

This action was brought to recover for the alleged unlawful taking and conversion of certain property belonging to plaintiff. The referee found in substance the following facts : In the year 1876 the assessors of the city of Syracuse assessed certain real estate, situate in the Sixth ward in that city, to Allen Munroe.and two other persons, who then owned the same as tenants in common; Munroe being the owner of an undivided three-eighths thereof.

<p>The legislature has power to determine the amount of a tax for a local improvement, and the property to be assessed therefor ; and its action in these respects is conclusive. It may also impose one portion of the cost upon one designated district and the balance upon another.</p> <p>Where, therefore, after an assessment for a local improvement had been adjudged invalid, because of the unconstitutionality of the act under which it was made * (Chap. 217, Laws of 1869, as amended by chap. 619, Laws of 1870), the legislature, by statute (Chap. 689, Laws of 1881) fixed the amount of the cost and expenses remaining unpaid by reason of the cancellation of the original assessment not paid, and directed the same to be apportioned among and levied upon the several parcels of lands originally assessed, the assessments against which had been so canceled, and directed due notice to be given to the land-owners of the time and place of making the apportionment. Held, that the act was constitutional; that the land-owners were not entitled to a hearing as to the aggregate to be collected, as the legislature had determined this and its determination could not be reviewed or changed; and that the hearing provided for was all' to which they were entitled.</p>

<p>It is not a controlling fact in the assessment of the capital stock of a corporation that the whole capital was originally invested in real estate; it is the duty of the assessors to ascertain the present value of the stock, and from this to deduct “ the assessed value of the real estate ” (§ 3, chap. 456, Laws of 1867), and such other items as are specified.</p> <p>While the indebtedness of the corporation is a proper subject for consideration in estimating the value of the stock, there is no authority for its deduction from the value after an estimate of the same has been made.</p>

This action was brought to- compel the surrender of certain stock which the complaint alleged had been pledged by plaintiff to defendant as security for the payment of a promissory note, and also to save defendant harmless from certain guaranties executed by him.

This was an appeal from an order of General Term affirming an order of Special Term granting a temporary injunction. The action was brought by plaintiff, a member of defendant, the New York Produce Exchange, and an agent of the National Steamship Company, to restrain said defendant from entertaining a complaint against him by defendant Carbart, an agent of the New York, Lake Erie and Western Railroad Company.