Volume 6 — New York State Reporter

Sheridan, the appellant to complete purchase of lands sold under a judgment in a partition suit. The subject of the action formerly formed part of a farm owned by Cyrus P. Smith, and sold by him in parcels to purchasers.

. Appeal from judgment entered on verdict rendered in favor of plaintiff at the Orange county circuit and, from an order denying a new trial on the judge’s minutes.

<p>1. Assessment—Erroneous assessment Correction of.</p> <p>Power is given to the supervisors by Laws of 1871, chap. 629, to correct an erroneous assessment upon the recommendation of the county court.</p> <p>2. Same—Formal error may be corrected.</p> <p>Held, that under this law forms must he followed, hut a formal error may be corrected.</p>

<p>1. Warranty—Representations in catalogue.</p> <p>The catalogue of defendant’s testator described particularly a kind of cabbage, and also contained an assurance that purchasers would get good seed. The agent of plaintiff’s intestate bought a quantity of the seed from defendant’s intestate, not at the time disclosing his agency. Plaintiff’s intestate, who was a farmer, used the seed with proper care and cultivation, so as to raise a crop; the crop, however, failed and the seed proved to be of an improper quality. Held, that the law assumes a contract from the orders for a particular kind and quality of seed that it is such as ordered, and that it will produce the vegetable named.</p> <p>2. Same—Breach—Measure op damages.</p> <p>Held, that the measure of damages was the difference between the value of the crop raised from the seed furnished and that of a crop such as would ordinarily have been raised from the seed ordered.</p> <p>3. Same—Purchase by agent—Principal undisclosed—Principal may sue.</p> <p>Held, that it was immaterial whether or not the agent disclosed his agency at the time of the purchase; the real party may sue for a contract made by an agent who fails to disclose his principal.</p>

<p>Waiver of appeal—By receiving benefits of order appealed from.</p> <p>Defendant demurred to the complaint on the ground, among others, that plaintiff had not legal capacity to sue in that the action must be commenced by the executrix of H., deceased. The demurrer was sustained, and plaintiff permitted to amend the summons, and also to amend the complaint, upon payment of costs. The plaintiff served upon the defendant the amended complaint, at the same time giving him a check for the costs. . Both were retained, and the defendant’s attorney thereafter served his answer to the amended complaint: Held, that he thereby waived his appeal from the part of the order amending the summons and complaint.</p>

<p>1. Railroad crossing—Obligation of company to keep crossing in REPAIR.</p> <p>The defendant operates a railroad which crosses the street in the village of M. Held, that both by Laws of 1850, chapter 140, and by common law, the defendant was bound to keep its road at the crossing in safe condition, so that a traveler upon the highway exercising ordinary care can pass over the same in safety.</p> <p>3. Liability to repair—Cannot be shifted.</p> <p>7:1 Id, that the liability of the defendant was not changed by the assumption of the village officials to keep the crossing in repair. Where the law imposes a duty on a person or a corporation, it cannot be evaded by casting it upon another.</p> <p>3. Contributory negligence—Error in judgment not. A mere error in judgment is not of itself contributory negligence.</p>

<p>Appeal from an order of the supreme court special term of Kings county denying a writ of mandamus.</p> <p>Voorhees Overbaugh was a justice of the peace of the town of Flatlands until June 23d, 1885, when he resigned his said office. His term would not have expired until December 31, 1886. The town authorities appointed Albert H. Van Dyke to fill the vacancy.</p> <p>At the following annual town meeting, held April 6, 1886, it was necessary, according to the claim of the relator, to elect to fill both the short term caused by the resignation of Overbaugh, and for a full term to commence on January 1, 1887.</p> <p>At said town meeting an election was held for justice of the peace; there were cast 121 votes for John M. Wilson and 97 for Henry M. Eliott, the relator, and they having received the highest number of votes cast were each elected a justice of the peace.</p> <p>The respondents, the election officers of the town, refused to certify the relator’s election, and contended that but one justice was elected, and certified to Wilson’s election.</p> <p>The relator insists that he also was elected, that the constitution required the mentioned vacancy to be filled by election, and that the ballots cast for him having designated him for the full term he is entitled thereto, no such designation being upon Wilson’s ballots. It was then the duty of the respondents, as the election officers, to determine that the relator had been elected for the full term as such justice; this they refused to do. At a special term the relator’s application to compel the respondents to certify to his election was denied, and he appealed.</p>

The plaintiff was the owner of a certain farm in the town of Gravesend, county of Kings, state of New York, which she leased to one John Steinninger from year to year, who Eved in the house upon the premises and cultivated the land.

<p>Judgment—Court has jurisdiction to set aside satisfaction of.</p> <p>The court has jurisdiction to set aside a satisfaction and reinstate a judgment under an agreement by the parties to that effect.</p>

<p>Mortgages—Foreclosure of—Power of court of equity to regulate PROCEEDINGS.</p> <p>The premises owned by the respondents were bought by them at a sale on the foreclosure of a mortgage, and were subject to a first mortgage, and also a second mortgage, covering them and other premises. Held, that the respondents having bought their property at a legal sale, a court of equity might make them parties to an action for the foreclosure of the first mortgage pending at the time of the purchase, and so control the proceedings under the several incumbrances as to produce a just result and protect the rights of all.</p>

Appeal by the plaintiffs from a judgment against them in favor of the respondent, entered upon the dismissal of their complaint at Dutchess county circuit, in an action brought to establish an alleged gift by the late G-. German Sharpsteen, of “about $20,000 in securities, and comprising nearly all his estate.

<p>Injunction restraining proceedings under judgment—What necessary to obtain.</p> <p>The fraud which will induce a court of equity to restrain the enforcement of a judgment of a court must be actual and must reside not in the issues tried in the action, but in the practice imposed upon the court or the opposite party during the prosecution of the action or the acquisition of ' the judgment.</p>

<p>Master and servant—Extent op duty to warn servant op the DANGERS OF THE EMPLOYMENT.</p> <p>A servant put into a dangerous employment should he instructed and warned against latent dangers, but where the dangers are obvious or well known to the servant, the instruction and warning not being necessary, is not required.</p>

<p>Appeal from a judgment of foreclosure and sale entered in this action after trial at Kings county special term.</p>

<p>Master and servant—Duty to furnish safe appliances.</p> <p>The master is bound to furnish the servant safe, sound and suitable, tools, implements, appliances and machinery, and cannot escape this liability by delegating the duty to a subordinate.</p>

<p>Slander—Action eor—Interpretation to be put on alleged slanderous LANGUAGE.</p> <p>In an action for damages to character by the use of slanderous language, imputing to the plaintiff the commission of a crime: Held, that the language employed should be given its ordinary import and meaning, unless accompanied by an explanation, or unless all the hearers understand that it refers to a transaction which' cannot constitute the crime which the words imply.</p>

<p>Negligence—What negligence op the servant imputable to the MASTER.</p> <p>Where an injury has been occasioned by the negligence of a servant, Ms negligence will be imputed to the master if the negligent act was committed while in the performance of Ms service.</p>

Appeal by assignee of purchaser in a foreclosure suit from an order of the special term, denying his motion that the plaintiff refund a deposit made by purchaser. The premises described in the complaint were on June 28, 1884, sold by the sheriff of Rockland county, pursuant to a decree of foreclosure and sale, granted on May 6, 1884.

<p>Appeal from decree of surrogate of Westchester county admitting to probate will and codicil of James Morgan, deceased.</p>

Upon the plaintiff’s resting his case the complaint was dismissed upon defendant’s motion to which plaintiff excepted and the exceptions were ordered heard in the first instance at the general term.

<p>Contract—Condition precedent—Verdict directed.</p> <p>Plaintiff presented to defendant and others a proposition in writing to furnish materials and. erect iron balconies to connect their houses according to the requirements of the Are and building department. The offer was accepted and the balconies constructed. In an action to recover the contract irrice the defendants pleaded that the contract had not been performed. It was proved that the balconies were condemned by the department. A verdict for the defendant was directed by the tr al judge. Held, that the plaintiff could not recover under his contract with the defendant until he had proved the erection of the balconies in accordance with the requirements of the building dep rtment, and that failing to do this he was nut entitled to a verdict even if rendered for him.</p>

<p>1. Evidence—Testimony of witness taken on a former trial, and SINCE DECEASED, IS ADMISSIBLE.</p> <p>On a former trial of the action one P. O. was examined as a witness, who lias since then died. Upon the present trial plaintiff offered such testimony in evidence, and it was received against defendant’s objection on appeal. Held, that evidence of a deceased witness taken on a former trial is admissible. That this rule existed prior to the enactment of Code Civ. Pro., §§ 839, 830.</p> <p>2. Money had and received.</p> <p>Plaintiff was a joint maker with P. O. on a note held by defendant’s testator. Plaintiff was merely a surety thereon. P. O. gave a mortgage on land owned by him to the R. S. B., and, a decree of foreclosure being obtained by the R. S. B., plaintiff paid the amount due thereon and had an assignment of this decree made to defendant’s testator under an agreement that he should collect the decree, and out of the proceeds pay the note, paying the balance to plaintiff. P. 0. paid defendant’s testator both the note and decree. Held, that upon these facts plaintiff would be entitled to a judgment for the full amount of the decree, with interest.</p> <p>3. Evidence—Making of note by party where accounts have been BALANCED BETWEEN HIMSELF AND OTHERS.</p> <p>After the assignment of the mortgage, which was in 1875, plaintiff, in 1881, gave defendant’s testator a note for rent. They settled all their dealings in 1884, expressly omitting the claim on the assigned mortgage, and applied the balance due the plaintiff upon this note given for rent. The remainder of the note was taken out of the moneys collected on the mortgage, held, that the note given to defendant’s testator by plaintiff is-not proof of the payment of the moneys received on the mortgage.</p>

<p>Evidence—Irrelevant.</p> <p>Plaintiff owes a lot upon which is a building used by him for a dwelling rad store. Defendant has without right put steam motors upon the street in front and the evidence tends to show he so used them as to cast ashes and dust in the hou e, and has made the street so noisy as to be unfit for residence or business. In consequence plaintiff’s business, it is claimed has been diminished. Defendant called as a witness a person living opposite to plaintiff and keeping there a small store and asked her whether as far as she could judge the running of cars in the street affected her business, her answer that it had not injured her was stricken out on objection. Held, that it was properly stricken out, that the very circumstances tending to injure plaintiff’s business might increase that of the witness.</p>

<p>Reference—Long account—What is—Code Civ. Pro., § 1013.</p> <p>Where the complaint alleged an account which comprised seven items, some of these items being composed of numerous articles and charges: Held, that the account was a long one within the meaning of Code of Civil Procedure, section 1013, which provides for the compulsory reference of the issues of fact in an action.</p>

<p>Appeal from a judgment entered on a verdict rendered in favor of plaintiff at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the judge’s minutes.</p>

<p>Appeal from a judgment entered on a verdict rendered in plaintiff’s favor at the Kings county circuit and from an order denying defendant’s motion for a new trial on the judge’s minutes.</p>

<p>Costs—When receiver of a corporation will be directed to pay.</p> <p>When the costs of the action were incurred for the benefit of the fund in the receiver’s ha ds, the receiver will be required to pay them.</p>

<p>Appeal from an order of the surrogate of Green county directing the executors of the will of Abijah S., Reeks to pay Maria Smith the sum of $1,750 as a legatee under said will.</p> <p>Abijah S. Reeks executed a will January 3, 1882, and a codicil thereto Rebruary 27, 1883; he died December 9, 1884, and the will and codicil were admitted to probate March 2, 1885. The opinion contains sufficient facts concerning the clauses of the will and codicil. Upon a verified petition being presented by the respondent a daughter of one of the residuary legatees and niece of another, a citation was issued by the surrogate to the executors that they show cause why a decree should not be made that they pay certain moneys to the respondent as legatee; permission was refused them to file a verified answer to the petition and decree rendered according thereto.</p>

<p>Appeal from a judgment entered on a verdict rendered in favor of plaintiff and against defendant at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the judge’s minutes, and from an order denying a motion for judgment notwithstanding the verdict.</p>

<p>1. Mortgage—At what time it becomes effectual.</p> <p>One owning the premises in suit in this action on February 6, 1878, conveyed the same with others to his nephew by deed of that date acknowledged on the thirteenth day of the same month and recorded on the following day. This conveyance was without consideration and executed with intent to defraud creditors. The grantee at the same time executed a deed conveying the same premises to his grantor’s wife and bearing even date with the first deed and acknowledged on the same day with it, but not recorded until October 4, 1881. He also, on October 2, 1879, by direction of the grantor, made a mortgage of the premises in question to the mother of this plaintiff, which was acknowledged December 27,1879, and recorded on the thirty-first day of that month. The mortgage was made to secure an indebtedness of the original owner of the premises to the mortgagee. In an action brought to foreclose the mortgage, its validity was attacked on the ground that it had no legal inception. Held, that the fact that the party at whose instigation the mortgage was made retained it after it was recorded, did not affect its validity; that when it was delivered by the mortgagor to the agent of tne mortgagee it became valid and effectual as a mortgage.</p> <p>2. Recording act—Bona fide purchaser.</p> <p>Held, that the mortgagee, considering the facts of the case, must be regarded as a bona fide purchaser under 1 R. S., 756, § 1. (Dvkman, J., dissents).</p>

<p>1. Evidence—Charge against a master for goods delivered to a servant—Intent of parties may be shown.</p> <p>In an action against a master to recover the amount of a hill for goods delivered to his servant: Held, that the fact that the goods were charged to the servant upon the plaintiff’s hooks was not conclusive against his right to recover, and that the court would look at all the surrounding circumstances to ascertain the intent of the parties.</p> <p>2. Same—Reason for entries may be shown.</p> <p>Held, that it was competent for the plaintiff to explain his si-stem of hook-keeping, and show why he made the charge to the servant instead of the master. ,</p>

<p>1. Appeal—From order when premature.,</p> <p>At a reference held in proceedings for the settlement of the accounts of the executors of a testator, one of the executors was requested to read from an account-book of the other executor who had died sometime previous. Objection was interposed by the counsel for the executor and overruled. Thereupon an order was obtained from the surrogate requiring the witness to show cause before him. why he should not be punished for contempt, and on the r, turn day an ord.r was made directing the witness to answer tile question before the referee, and reserving all questions respecting the competency of the p oposed testimony until the coming in of the referee's report. II Id, that an appeal from the order was premature.</p> <p>3. Evidence—Interlocutory rulings on the admissibility op, cannot BE REVIEWED SEPARATELY.</p> <p>Interlocutory rulings respecting the admission or exclusion of evidence on the trial of a cause, cannot be reviewed separately as they are made.</p>

<p>1. Master and servant—Negligence.</p> <p>If an act clone or omitted is in the execution of the proper details of the principal work which has been by the master directed to be done, such execution of proper details is the act of the servant, no matter how high the rank of the subordinate who performs the labor.</p> <p>3. Same—Liability op master.</p> <p>The master is not liable to a servant fcr damages arising through the negligence of a iel'ow servant. - But where the master’s negligence is the proximate cause of an injury to a servant, he is not relieved from the liability by the fact that the negligence of a fellow servant co-operated in producing the injury.</p>

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

<p>Appeal from an order of the county court of Westchester county setting aside a verdict in favor of plaintiff and granting a new trial.</p>

<p>Divorce—Judgment for—Jurisdiction.</p> <p>The jurisdiction of the probate court of Utah is local, and the plaintiff in a divorce suit must reside in the county of the probate judge in such action. Where the proof showed that the plaintiff never ceased to reside in this state, that the marriage was entered into in this-state, and there was no proof that the husband ever lived in Utah, but that he made an appearance in order to evade the law of New York state, and annul a New York marriage, for reasons not sufficient under the New York 1"W Held, that such a consent did not give the Utah court jurisdiction of either.</p>

<p>1. Partnership—Principal and agent— Termination of the relation.</p> <p>The plaintiff agreed to deliver f rtilizers to the defendant, who was to sell them, and the net profits were, according to the agreement, to be shared equally by the parties. Held, that whether the agreement constituted a partnership between the parties, or merely created the relation of principal and agent, no limit of time having been placed by the arrangement, it might be terminated at any time at the option of either party.</p> <p>3. Same—Termination of—Receiver—Injunction.</p> <p>Held, that should the agreement constitute a partnership between the parties, upon the termination of that relation, it would be consistent with ordinary usage to appoint a receiver and grant an injunction against the further use of the partnership name and the continuance of the business.</p> <p>3. Principal and agent—Termination of relation—Receiver—Injunction.</p> <p>Held, that in case the relation created between the parties was that of principal and agent, the pap rs showing that property of the plaintiff remained in hands of the defendant upon the cessation of that relation, it would be proper and just to appoint a receiver, and that the continued use of the plaintiff’s name as the principal of the defendant would be such a wrong as demanded an injunction.</p>

<p>Evidence—Letters explanatory of transactions are relevant.</p> <p>Where the question at issue was whether certain of the defendants had in their hands property belonging to others of them, which ought to be applied to the satisfaction of a judgment held by the plaintiff: held, that letters of the defendants to each other explanatory of various transactions, between them with regard to the property, were admissible in evidence.</p>

<p>3. Pleadings—Reply—When irregular—Code Civ. Pro., § 516. '</p> <p>A plaintiff lias no right to reply under Code Civil Procedure, § 516, except when required by order 06 the c urt, and without such order a reply would be irregular, and liable to be stricken out on motion.</p> <p>S. Same—Order requiring a reply—Code Civil Pro., § 516.</p> <p>An order requiring a reply can be granted only upon the application of the defendant.</p> <p>8. Same—Waiver of right to order.</p> <p>Where the defendants delayed making a motion to compel a reply until the action was referred and noticed for hearing: Del that the failure to raise the objection that a reply was necessary at the argument of the motion for reference, was a waiver of the right.</p>

<p>Master and servant—Duty of master to keep tools in repair.</p> <p>It is the master’s duty to use reasonable care to furnish suitable machinery and tools for the purpose of the employment, and to keep the same in repair.</p>

<p>1. Evidence—Competent—Res gestee—Insurance—Accident.</p> <p>In an action to recover upon a policy of insurance against accident, the issue being whether oz.e Madden died from accident, proof of Madden’s declarations made at the time of the accident to explain the nature, quality and character of the facts constituting tile injury, was competent. The circumstances leading up to the disaster and immediately following it were a part of the res gestee.</p> <p>%. Witness — Foreign — Adjournment on account of absence discretionary.</p> <p>The granting of a motion to adjourn a cause on account of the absence of a foreign witness, rests largely in the discretion of the court, and if both sides are heard and the discretion is wisely and fairly exercised, the ruling will not be disturbed by an appellate court.</p>

<p>Appeal from a judgment entered upon a verdict in favor of plaintiff in an action for part of a reward paid for information concerning a missing girl.</p>

<p>Supervisor of the town of New Lots—Effect of Laws of 1886, chap. 335.</p> <p>The annexation of tile town of New Lets to the city of Brooklyn, under chapter 335, Laws of 18C.6, wrought no charge in the official status of supervisor of said town holding office on the 1st day of August, 1886, nor upon the duties of his official po.-ition.</p>

<p>Trial—Jury—Discharge—Sealed verdict—Alteration.</p> <p>The jury were directed in this case to bring .in a sealed verdict, and the usual blank in such cases was given them by the court, which directed them to state which party they found tor, and also to fill up the blank as to the value of certain chattels, and if they found for the defendant, to assess damages equal to the interest on a certain amount for a certain time. Their sealed verdict was simply the value of the chattels, after handing in which they separated. They were called together again in the morning by the court and sent cut again, with instructions to find on the other questions submitted to them, which they did. finding for the defendant. Held, that their separation, after handing in the sealed verdict, did not amount to a discharge. Following Warner v. M. T. G, R. R. Go,, 52 N. Y„ 437.</p>

<p>1. Negligence — Streets — Municipal corporations —When charged with notice of defective condition of sidewalk.</p> <p>A municipality is charged with the duty of keeping the sidewalks in good order, and after the sidewalk has been out of repair so that the defect has become known and notorious to those traveling upon it, and there has been full opportunity for the municipality through its agents charged with that duty to learn of its existence and repair it, notice will be implied and the municipality is chargeable with negligence.</p> <p>2. Same—Notice to the president of a village charges village— Laws 1870, chap. 291.</p> <p>Where a village was incorporated under Laws 1870, chapter 291, the president of the village is a member of the board of trustees (who are also the commissioners of highways), and holds such a relation to said board and to the village that notice to him of the defective condition of the sidewalk would be sufficient to charge the village with notice.</p>

The action is to compel the specific performance of a paroi contract for the sale and conveyance of land. The vendors were Frank W. Bonny and Robert P. Bonny. The other defendants are respectively their wives.

In this action plaintiff obtained an attachment against the property of the defendant, which, upon defendant’s motion, was vacated, with costs and disbursements to be paid by plaintiff. The plaintiff appealed from the order vacating to the general tei'm, where the order was affirmed January Term, 1886, with costs and disbursements, which were taxed, upon notice, by the clerk, February 3, 1886.

<p>Appeal from a judgment entered on the verdict of a jury at Wayne county circuit and from an order denying motion for a new trial, on the minutes.</p> <p>This action was brought upon a policy of insurance issued iby the defendant, to recover for the loss of a ¡barn, produce and other personal property therein.</p> <p>At the close of the plaintiff’s case the defendant moved for a, non-suit, upon the grounds:</p> <p>First. That from the undisputed facts in the case, Elton M. Smith the assured, was not in fact the real owner of the property insured; that the property was conveyed to him merely to hold for the benefit of his father, and that there was no disclosure to the defendant of the real ownership.</p> <p>Second. That at the time when the fire occurred the premium had not been paid by the assured, that the policy was then absolutely null and void.</p> <p>Third. That there was a breach of warranty in the application with regard to the incumbrances upon the property.</p> <p>This motion was denied by the court, the defendants excepted and the plaintiff had a verdict.</p>

<p>Appeal from a judgment entered on the verdict of a jury-in Wayne county court, and from an order denying motion for a new trial, made on a case and exceptions.</p>

The defendant, the G-. L. of the A. O. of theU. W., isadomestic corporation organized prior to March 24, 1879, pursuant to Laws of 1877,chap.74, as amended by Laws 1878, chap. 69, and instituted a subordinate lodge at Hornellsville, N. Y., known as the George Washington Lodge, No. 132.

Motion by plaintiff for judgment upon a verdict directed by the court at the Steuben circuit, subject to the opinion of the court at general term.

<p>Appeal from order of Erie Special Term denying motion to dissolve an injunction.</p>

<p>Insurance (pire)—Recitals in policy—How par notice to insured.</p> <p>In an action to recover the amount of an insurance on property destroyed hy fire, the policy contained a provision that all statements and representations contained in any written or verbal application, survey, plan or description of property therein insured shall he taken and deemed to he warranties.’’ The only reference to the application in the policy which would indicate in any way that it was in writing was the expression “hearing even date herewith.” Held, that there was no sufficient notice to the im sured that there was a rvritten application on file in the company’s office so as to make it his duty to inform himself of its contents; that he was justified in supposing it had reference to his oral application, he not having signed or authorized any one to sign a written application for him.</p>

<p>1. Highways—Certiorari—Return conclusive as to facts—How corrected if defective.</p> <p>Where a writ of certiorari was issued to review the proceedings of the commissioners of highways and town clerk of the town of Cohocton in laying out a highway in said town- Held, that the return to the writ is conclusive as to the facts and cannot he contradicted; that if it is defective, the court may direct a further return; if it is false, the relator’s remedy is hy action.</p> <p>2. Same—When party estopped from raising question of irregularity.</p> <p>Where the return stated as a fact that the relator appeared hy his agent; that at the drawing of the jury it was mutually agreed between the applicants and the relator that iio one should be allowed to act as juror that was not satisfactory to both parties; that the jury was so drawn by consent of the applicants and the relator: Held, that the relator was estopped from raising the question of irregularity on a review on certiorari and had waived his right so to do.</p> <p>3. Jury—What does not amount to improper conduct.</p> <p>Where the jury, who had to pass upon the necessity of the highway had to travel on foot a long distance to view the lands through which the highway was proposed, were four miles from any hotel and had had no dinner, although it was two o’clock in the afternoon, and a general invitation was given by one Marsh, who signed the application for the highway in the presence of the relator and other parties interested, to the jurors to take dinner at his house, which was accepted, but no discussion took place at the dinner-table in reference to the proposed highway. There was no evidence of any improper motive on the part of Marsh in giving the invitation or that any prejudice resulted to the relator in consequence thereof. Held, that there was no reason for annulling the proceedings.</p> <p>4. Practice—Who entitled to be party in certiorari to review proceedings to lay out highways.</p> <p>Where it appeared that the relator in certiorari, to review the proceedings of commissioners of highways to lay out a highway, was not the owner of the lands claimed to be owned by him, but that said land was owned by another: Held, that he was not aggrieved and that he had no standing in court.</p>

The original defendant was George W. Barney, who died since the commencement of this action, and the present defendants are the executors of his last will and testament. The property was seized at the commencement of this action and delivered to the plaintiff who retained the possession. The form of judgment is that the plaintiffs have and retain possession of the personal property described in the complaint and recover costs which were taxed at $159.94.

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

Appeal by the defendant from judgment entered on a verdict of Cattaraugus circuit and from order denying motion for new trial.

<p>1. Master and servant—When that relation will not be presumed to exist.</p> <p>Where the plaintiff, who was the mother-in-law of defendant, remained seven years with defendant after his wife’s death, as housekeeper, and took care of his children, then aged five and three. II Id, that no implied obligation on the part of the defendant to pay the plaintiff for her services arose out ■ f that fact alone; that without some evidence o the contrary it would be presumed that she was there as a member of the family, making the defendant’s house her home, and rendering services incident to that situation and relation.</p> <p>3. Same—When it will be implied.</p> <p>Held, that his liability must rest upen a promise to pay, which might be implied from an understanding between them, but that the understanding must be his as -wall °as hers, and that it is upon his understanding that his liability depends.</p> <p>3. Same—What facts show such an understanding.</p> <p>The fact that she kept an account of what she received, and gave him credit for it from time to time, and advised him frequently that she could i form him of what lie had paid her, may reasonably have led him to understand that she expected paymet t; and his remark to the plaintiff when she left his service, that he could pay her what he owed her, may go in aid of the infrence of such understanding on his part.'</p> <p>4. Same—Statute of limitations.</p> <p>Held, that the services would be deemed performed as from year to-year, and that the amounts received would be applied upon the services first earned, although over six years before the suit was commenced. And that tlie statute of limitations did not apply to the services rendered w thin six years.</p> <p>Appeal from judgment of the Cattaragus county court, entered upon report of referee. The action is for services alleged to have been rendered by ■ the plaintiff for the defendant. The plaintiff recovered $616.40. The defendant-appeals.</p>

<p>Appeal from a judgment entered on the verdict of a jury, at trial term.</p>

<p>Appeal from a judgment entered upon the report of a referee in favor of plaintiff in an action for the value of certain work, labor and services.</p>

<p>Appeal from a judgment entered upon a verdict in favor of plaintiff.</p> <p>This action was brought to recover damages for the conversion of a diamond ring. It had been pledged, with other property, by the plaintiff to one Edward Materne, in 1881, as security for a loan. Subsequently she partially repaid the loan, and requested Materne to deliver the ring to her husband, who was instructed to bring the ring to her, but in disregard of such instruction, he pawned it with the defendant Reiman, in February, 1883. During the latter month, the plaintiff’s husband went with John F. Simpson to the defendant’s store, where Simpson advanced $225 on the ring, repaying Reiman’s advances out of that amount, and giving the balance, with the pawn ticket, to plaintiff’s husband. Simpson took the ring and retained it until April 9, 1883. On that date, the plaintiff's husband sold or gambled away the pawn ticket to one Albert Kirby. A clerk of defendant Reiman took the pawn ticket to Simpson’s and redeemed the ring, which the plaintiff never recovered. A demand was made upon the defendant on April 25, 1SS3, for the ring, which was refused.</p>

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

<p>Set-off—Of joint debt against a separate debt not allowed.</p> <p>Courts of equity, following the law, will not allow a set-off of a joint debt against a separate debt, or conversely of a separate debt against a joint debt. Affirming S. C., 3 N. Y. State Rep., 373.</p>

<p>Trial practice—Questions op pact are for the jury.</p> <p>If' the defense pleaded by defendant would be good if proven upon the plaintiff’s denial, it becomes a question of fact for the jury.</p> <p>Appeal from a judgment entered on a verdict of a jury, under the direction of the court.</p>

<p>Appeal from a judgment of the city court rendered at general term reversing a judgment entered upon the direction of the trial judge, dismissing the plaintiff’s complaint with costs, and directing judgment in favor of the defendant.</p>

<p>I. Reargument—When ordered.</p> <p>The court may order a reargument of an appeal on its own motion.</p> <p>2. Same—Motion for leave to appeal to court of appeals.</p> <p>Where on a motion for leave to appeal to the court of appeals, thsjQ seems to be doubt whether certain later decisions than the one reli d upon bv the court in its former decision had been applied in the onstruction of the agreement in question, a reargument isaS ordered, although the party-moving for leave to appeal to court of appeals had not applied for it.</p>

<p>1. Landlord and tenant—Consolidation act—§ 652—Duty imposed upon landlord—Right op action for breach op. ■</p> <p>The complaint in an action by a tenant against a landlord, alleged that defendant was the owner of the premises, winch building was a tenement house occupied by plaintiff and other tenants; that the building was negligently kept, inasmuch as the stairs were covered with zinc, or some other metal, which had become so worn that the edges became sharp, jagged and curled up, and defendant negligently permitted them to remain so; and that plaintiff while lawfully using the stairs and carefully passing down the same, and without any fault or negligence on her part, tripped and fell and broke her right hand and wrist. Held, that it states a good cause of action under the statute, section 652 of the consolidation act, requir. ing, in respect to tenement houses, that all stairs shall he kept in good repair. The duty thus imposed by lay? upon the landlord is for the benefit of the tenants, so that they may have a safe passage from their apartments to the street, and a breach of the duty imposed by statute gives a right of action.</p> <p>2. Same—Pleading.</p> <p>It was not necessary to plead the public statute.</p>

<p>1. Carrier—Negligence—How proved by damaged condition op property WHEN DELIVERED.</p> <p>A party is bound to prove the condition of property at the time it went into the hands of a carrier, in order to show by the damaged condition of said property when delivered, that the carrier was negligent.</p> <p>3. Same—When the burden oe explaining, put on carrier.</p> <p>Proof of the good condition of property when received by a carrier and the injured condition when delivered, throws on him the burden of explaining how it became so.</p> <p>8. Same—Bill op lading—Proof op condition when received by carrier.</p> <p>The bill of lading, or the document that answers that purpose, acknowledging the receipt of property in good order and in good condition would be sufficient in the first instance, to show that the property was uninjured at the time it was shipped.</p> <p>4. Same—No presumption as to condition op property.</p> <p>There is no presumption that property is in good order when shipped, nor that it remains in good order while in the hands of a third party, intermediate the receipt and time of shipment.</p>

<p>Appeal from an order denying a motion made at special term, for a writ of peremptory mandamus.</p>

<p>This action was brought in the city court of New York upon a promissory note given to one Orrin F. Waterhouse, who died and bequeathed the note in suit to Lurana Waterhouse, whose administrator sues.</p> <p>The defense is usury and the defendant himself was the only witness called to establish the defense. The transactions in relation to the note, when given, were with a Mr. Hudson, who represented the promisee, who, it does not appear, was present.</p> <p>The plaintiff objected that the testimony of defendant was incompetent in that a “party should not be examined as a witness in his own behalf against the administrator, etc., concerning a personal transaction between the witness and the deceased person.” § 829 Code Civ. Pro.</p> <p>The trial resulted in a judgment for the defendant, which has been affirmed both by the general term of that court and of this. Motion is made for leave to appeal to the court of appeals.</p>

<p>1. Practice—Action for chattels—What answer mat contain in justices court—Code Crv. Pro., § 1733. 1</p> <p>Section 1733, Code Civ. Pro., is not applicable to courts of the justices of of the peace or to district court of the city of New York.</p> <p>2. Same—Evidence—Judgment in another action.</p> <p>The judgment in another action brought by a third party against the plaintiff herein, was not evidence in this action of any matter that might have been decided in that other action.</p>

<p>Appeal—When leave to go to court of appeals will be denied.</p> <p>A motion for leave to go to court of appeals will not be granted where there is nothing in the appeal worth considering, but questions of fact.</p>

<p>1. Execution—Sheriff has no power to sell property without.</p> <p>The issue of the execution to the sheriff is vital to his power or jurisdiction to sell the judgment debtor’s property under it. He has no power to sell unless he has the execution.</p> <p>2. Same—Sheriff has no power or duty to judgment creditor without—Issuing execution a private act.</p> <p>The sheriff, though a ministerial officer, is charged with no power or duty touching the property of a judgment debtor, with respect to the judgment, except at the instance of the judgment creditor, who in order to set him in motion and clothe him with power must first place an execution in his hands. The doing of this is strictly a private act in which the public has no concern,</p> <p>3. Same- -Recital of the issuing of, in sheriff’s deed, does not prove it —Hot admissible in evidence.</p> <p>The recital of the issue of an execution to a sheriff, in a sheriff’s deed given on the sale of the property of a judgment debtor, standing alone, unsupported by any evidence of possession under the deed, or recognition by the judgment debtor of its validity, or other acts in pais tending to support the deed or the recital, is not evidence of the fact of the issue of the execution against those claiming under the judgment debtor. And was properly excluded as irrelevant and immaterial.</p> <p>4. Same—Presumption of issuing.</p> <p>The search by the county clerk and his failure to find an execution, standing alone, affords no presumption of its loss. There must in addition be some evidence that the execution some time existed.</p> <p>5. Presumptions—Ancient deeds must be supported by matters in pais.</p> <p>Presumptions are indulged either in favor or in opposition to ancient deeds according to the matters in pais which accompany them.</p> <p>6. Same—Adverse possession—When it commences—Code Civ Pro., 88</p> <p>365, 368.</p> <p>Where there is no written lease the tenancy will not be presumed to continue after twenty years from the last payment of rent. After that time it will be presumed that the former tenant held under a right adverse to his former landlord. Twenty years of such adverse possession bars an action to recover possession.</p>

The action was for merchandise sold by the plaintiffs to the defendant. It was admitted that the plaintiffs were entitled to recover $778.30 unless they had, by accepting the following assignment as collateral security, extended the time of payment.

<p>1. Contract—Evidence of acts of one party after making, not admissible TO PREJUDICE THE OTHER PARTY.</p> <p>In a suit on a contract it is error to admit in evidence, proof of the acts of one party to a contract prejudicial to the other party thereto, when those acts occurred after the contract was made.</p> <p>2. Same—Firm not bound by individual contracts of members.</p> <p>If one contracting with a jiarty who is a member of a firm has notice that said party is acting for himself and not for the firm, the firm is not bound by the contract unless it adopted it.</p> <p>3. Same—Admissibility of evidence to show scope of business.</p> <p>Touching the scope of the business of the firm, the defendant was permitted to give evidence of a card inserted in a newspaper, without giving any evidence tending to show that it was brought to the plaintiff’s notice. Also evidence of customs of the firm in doing business, of which he had no notice. Held, error.</p> <p>4. Same—What admissible to show reason for repudiation of.</p> <p>It was proper for plaintiff to ask the partner who repudiated the contract, if in July following the making of the contract in question, he ascertained that the assets of the firm were insufficient to pay its debts.</p> <p>5. Lease—Liability of lessor on failure to make agreed repairs—</p> <p>of lessee. i</p> <p>When the lessor covenanted to put a certain factory in running order, and the lessee entered into possession. The lessee became liable to pay the agreed rent, and the lessor was liable for damages, if he failed to put the premises in running order.</p> <p>6. Same—Measure of damages on failure of lessor to make agreed REPAIRS.</p> <p>The measure of damages in such a case would he the difference in the value of the use of the premises as they were and as the lessor had agreed to put them.</p> <p>7. Trial—Question of fact for jury to decide when controverted.</p> <p>It is error for a judge to direct the jury liow to decide a controverted question of fact.</p>

. The action was brought to recover upon a bond executed by the defendants to the plaintiff. From the evidence, it appeared that in August, 1882, one Mathias 0. Eaton was the owner of a parcel of bonds known as the “Mexican Woodhouse bonds.” These bonds seem to have been in the custody of the Manhattan Engraving Company, a bankrupt, at the time its assets passed into the hands of its assignee in bankruptcy, and these bonds thus came to the assignee’s hands.

<p>Appeal from a judgment in favor of the plaintiff upon the verdict of a jury, also from the order denying the motion made upon the minutes for a new trial.</p> <p>The action was to recover $500 upon a sealed agreement, as modified by the parties.</p> <p>On the 19th of January, 1882, the plaintiff was and for many years had been in the possession of the lot known as the factory lot, at High Falls, Ulster county. On that day he conveyed the lot by quit-claim deed to the defendant for $3J5, which the defendant paid, and at the same time both parties entered into an agreement under seal which, - after reciting said conveyance, was as follows :</p> <p>“Now, therefore, the said party of the second part hereby agrees to pay to the said party of the first part the sum of $500, whenever said party of the first part shall produce a ' deed from Margaret Snyder, deceased, formerly of Hones-dale, Pa. (daughter of David 0. Hasbrouck), to Isaac L. Hasbrouck, deceased, formerly of said town of Marble-town, conveying the said hereinbefore described lands and premises and water privileges to said Isaac L. Hasbrouck, or shall produce or be able to show and prove any other good and sufficient conveyance or title of the said lands and premises and water privileges from said Margaret Snyder to said Isaac L. Hasbrouck, by virtue of which said party of the first part might have had any title to said lands and premises and water privileges from said Margaret Snyder through said Isaac L. Hasbrouck.”</p> <p>The lot had formerly been owned by the plaintiff’s former wife who died in 1842, and by her sister Margaret, now deceased, formerly the wife of Isaiah Snyder, as tenants in common. The parties understood that the plaintiff had acquired his former wife’s title, and the plaintiff believed that he had also acquired his sister Margaret’s title, by virtue of a deed given by her to her brother Isaac L. Hasbrouck, whereby, under the will of Hasbrouck, the title came to the plaintiff. At least, both plaintiff and defendant were agreed that if this deed from Margaret Snyder to Hasbrouck could be found, plaintiff’s title would be complete, and his deed to the defendant would convey the whole title. But the deed from Margaret to Hasbrouck could not be found. After the sealed agreement between the parties was made, they became satisfied that Margaret had never given any deed to Hasbrouck, and hence, because of Margaret’s death, leaving her husband Isaiah Snyder and their one child surviving her, which child subsequently died, the title to Margaret’s half was vested in Snyder, who lived at Harrisburg, Pa.</p> <p>The plaintiff’s testimony which the jury accepted, was to the effect that he could not find the Hasbrouck deed and, that defendant would have to have a deed from Snyder; that defendant said if plaintiff got him a deed from Snyder, it would be satisfactory. Plaintiff intended to go to Harris-burgh to obtain it, but was sick and did not go. Defendant asked plaintiff to consent that defendant should go. That he was in a hurry to perfect his title and build on the lot, he would go free of cost to plaintiff, and if he got the title from Snyder, he would pay the plaintiff the $500, whether he paid anything to Snyder or not. The plaintiff consented. The defendant did go—obtained the deed to himself from Snyder. It appeared from defendant’s testimony that he paid Snyder $500. Defendant refused to pay plaintiff the $500.</p>

<p>1. Assignment fob the benefit of ceeditobs—When void.</p> <p>An assignment for the benefit of creditors, given and received for the purpose, among other things, of apylying the firm property to pay the individual debts of the members of the firm, is void. It makes no difference whether such an assignment was to a trustee or to a creditor, or was in the nature of a mortgage. In either case the purpose will, if carried out, enable the plaintiff to hinder and delay the firm creditors in obtaining satisfaction of their debts, and will defraud them to the extent that the firm property is applied to individual debts.</p> <p>2. Same—When void in fabt wholly void.</p> <p>The whole assignment is void if any part was made with the intent to defraud or delay creditors.</p>

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

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

<p>1. Public officers—Only removal for acts done in present time.</p> <p>The court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers.</p> <p>3. Same—Evidence—Limited to act during present term.</p> <p>In an action to remove an officer the inquiry should be limited to acts done during the existing term of office, unless some light can be thrown on those acts from previous conduct.</p> <p>3. Same—What may be proved to show intent.</p> <p>In civil and in criminal actions there are a few exceptional cases in which proof of other acts of a party may be received in order to characterize the act which is the ground of action or defense. The object is generally to show intent or motive.</p> <p>4. Same—When made to undergo a trial por misconduct.</p> <p>A public officer will not be subjected to a trial upon charges of misconduct until the court has been convinced that there is good reason therefor. When the charges are not supported by evidence sufficient to do so they should be dismissed.</p>

<p>Highways—Discontinuance—Posting of order not necessary to validity.</p> <p>The failure of a town clerk to post notice of the order discontinuing a. highway does not make the order invalid.</p>

<p>Appeal from a judgment entered upon a report of a referee in favor of defendants in an action for the value of a canal boat claimed to have been converted by defendants.</p>

<p>1. Highways—User.</p> <p>"Where the ditch on the side of a road has been used, all the time that the road itself has; for draining the surface water outside of the road, or confining the spring water outside of the road, such user taken in consideration with the user of the road would amount to a user of the ditch as part of the highway.</p> <p>2. Same—Obstruction of ditch an obstruction of highway.</p> <p>An obstruction placed in said ditch which threw the water upon the highway so as to render passage over it less convenient is an obstruction Of the highway and not an encroachment.</p> <p>3. Same—Commissioner mat summarily remove obstruction.</p> <p>Anything which obstructs public travel over the highway may be summarily removed by the commissioner of highways.</p> <p>4. Same—Ancient order laying out not void for uncertainty.</p> <p>An order over fifty years old, which laid out a highway, should not be rejected as void for uncertainty in the description when the highway has been used in supposed conformity with it.</p> <p>5. Same—Commissioners of—Officer may show that he is, de jure, BY SECONDARY EVIDENCE.</p> <p>When an alleged officer, in this case commissioner of highways, is suing or defending he must show not merely that he was acting as such officer, but that he was such officer. This may be shown by secondary evidence.</p> <p>6. Jury—Right of each juror to individual opinion—judge’s charge/i</p> <p>Where a judge charged the jury on their statement that they could not agree, “ No' juror should make up his mind that he will stand by his opinion forever; that he will listen to no suggestion of his fellows, but simply stand in his traces and remain there stalwart and stolid,’’ and sent them, back, it was error. But no exception having been taken by either party it is not a ground for a new trial.</p>

This is an appeal from a judgment entered in this court' upon the report of a referee dismissing the plaintiff’s complaint with costs. The action was brought to recover three thousand dollars for nursery trees, alleged in the complaint to be the property of the plaintiff, which were in the possession of the defendant, and which had been demanded of the defendant by plaintiff, with which demand the defendant refused to comply.

<p>Dower—Subrogation.</p> <p>In an action by this plaintiff to secure the admeasurement of dower in premises of which her husband died seized, it appears that she had jot ed with him in the execution of a mortgage which, with interest, was unpaid at his death, whereby she released her claim for dower in favor of any person who should thereafter acquire title to the mortgaged premises. The premises, subsequent to the death of her husband, were released from the lien of the mortgage, and she has not in any other way released her claim of dower. The defendant, who holds title to the portion of the premises in question, under conveyances made subsequent to the death of the plaintiff’s husband, seeks to be subrogated to the rights of the original mortgagee, and that the plaintiff’s claim be limited to the equity of redemption. Held, that the mortgage having been discharged to free the defendant’s title to the premises from the lien thereof, he was never a surety for the payment of the mortgage and not entitled to subrogation.</p>

<p>Appeal from a judgment entered on a verdict in an action to recover for assaults, one resulting in the rape of plaintiff, and from an order denying a new trial.</p>

<p>1. Mutual relief society—Benefits—Forfeiture—Breach of conditions UPON WHICH FORFEITURE MAY BE PREDICATED.</p> <p>The by-laws of the defendant society provided in part as follows, by article 5, section 5, that the secretary shall notify the members of the society of all dues and assessments for the payment of death losses, etc.; by article 7, section 2, that the local secretary shall serve notices of assessments and dues upon the members of the local board personally or by mail; and by article 4, section 7, that if any member shall neglect to pay his annual dues or assessments within thirty days from the date of a notice to pay the same by the general secretary, ten days’ grace however being given, he shall forfeit all claims on the society. Meld, that a notice of dues and assessments to a member of the local board in due form and signed by the general secretary, served on him by the local secretary would satisfy these provisions as respects the matter of service, and would be sufficient to effect a forfeiture of the rights of the member under his certificate of membership if unheeded for the time requisite to produce that result as declared in the by-laws of the society.</p> <p>2. Same—Not favored by the law—Breach must be clearly established.</p> <p>The law does not favor forfeitures, and before a forfeiture will be permitted to become effectual, the fact or facts necessary to its support must be clearly established by the most satisfactory proof.</p> <p>3. Same—What amounts to waiver of breach.</p> <p>No proofs of the death of a party assured by this society were furnished it as required by its by-laws. Held, that the society having refused to furnish blanks for the making of such proofs when called upon thereff r and putting such refusal, and its refusal at all times to pay the claim upon the ground of a failure to pay an assessment made and consequent forfeiture, had waived the omission to furnish the proofs of the death of the assured.</p>

<p>1. Negligence—Contributory—Railroads—Coupling freight cars— Proper mode.</p> <p>It is negligent for a person engaged in coupling freight cars to attempt to reach over the draw-heads ” and raise the “ link,” as he is in danger of being caught between the “ dead-woods” of the cars.</p> <p>2. Same—Master and servant.</p> <p>• The duty of the master to furnish suitable machinery and to keep it in repair, is not absolute, and is satisfied by the exercise of reasonable care and prudence.</p>

<p>Appeal from a judgment entered on the report of a referee in favor of the plaintiff in an action to foreclose a mechanics’ lien against the owner of land.</p>

<p>Appeal from a judgment entered upon a report of a referee in favor of the defendant in an action on a bill of sale of a certain steamboat.</p>

<p>1. Insurance—Life—Warranty by insured—When question for jury.</p> <p>In an action brought to recover the amount of certain policies of life insurance, tlieir payment being resisted on the ground that certain answers-made by the insured in his application as to his previous health were false. Held, that under the circumstances and evidence in this case, it became a question for the jury to say whether there was a breach of warranty made by the assured.</p> <p>2. Same—Construction of policy—What is a disease within the WARRANTY.</p> <p>„ In construing a policy of life insurance, before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon general health and the continuance of life, or such as, according to common understanding, would be called a disease. Following Cushman v. United States Life Insurance Company, 70 FT. Y , 72.</p> <p>8. Trial practice—Request to charge—What improper.</p> <p>It is not proper to refer to the testimony of a witness, and ask the court to charge that if the jury believe the witness, they must find in a certain, way, or that a certain conclusion follows. Following Dolan v. Delaware and Hudson Canal Company, 71 FT. Y., 285.</p>

<p>1. Evidence—Bills and notes—What admissible as part of the transaction.</p> <p>On the trial of an action to recover on a note from defendant as endorser, the defendant, a witness on his own behalf, testified that a certain guaranty was not on the note when he signed it. He was asked: “ State what Beardslee (the maker) requested of you when he brought you the note.” Reid, the answer was only proper as a part of the transaction, as showing defendant’s attention was called to the matter at the time, and as negativing any authority to make any other contract.</p> <p>3. Same—What amounts to an admission—Consideration for promise.</p> <p>If defendant stated to plaintiff: “ Have you that promissory note; I will pay it; I really wouldn’t want to swear the guaranty was not there,” it did not amount to an admission, and as a promise to pay was without consideration.</p>

<p>Municipal corporations—Sewer—When liable for insufficiency.</p> <p>The defendant had constructed a sewer of more than sufficient capacity for all ordin try occasions; the defendant had never been notified by the occurrence of an accident that the sewer was insufficient; if it proved insufficient only for an extraordinary freshet not to be expected, then no blame can be attached to the defendant. Cases discussed.</p>

<p>1. Will—Probate—When refused.</p> <p>The decedent, at the time of the making of the instrument offered as her will, was so weak that she could not speak or sign her name, and died the next day. She had, when well, expressed a determination not to make a will. Scott, who was one of the principal beneficiaries thereunder, had no especial place in her affections superior to her other next of kin, but went to her house three days before her death for the purpose of procuring her to make her will. He repeated her directions to the scrivener, and was present while the instrument was read over and executed. When she was asked if she acknowledged the mark made for her to be her signature, she replied she did not know whether she did or not. Held, that probate was properly refused.</p> <p>2. Evidence—Competency—Code Civ. Pro., §§ 829, 2544.</p> <p>The decedent whispered directions as to her alleged will to one Scott, who repeated them aloud to the draughtsman, who then wrote them in the instrument. When it was completed, the draughtsman read it over to decedent, Scott being present at the time. Scott was the proposer of the will, and one of the principal beneficiaries thereunder. Held, he was not a competent witness to prove whether the will was read to decedent, etc., under Code of Civil Procedure, section 829, and that section 2544 does not touch the question.</p>

<p>Practice—Reargijment.</p> <p>Where on appeal by the people to the court of appeals from an order of the general term reversing a conviction for a criminal offense, the court, on defendant’s motion, dismissed the appeal,.unless the people should procure a modification of the order of reversal, and remitted the return to this court for that purpose, and the people applied for and obtained a modification of this court’s order, giving a fuller statement of their action. On a motion by the people for a reargument in this court; Held, not a proper case, under the circumstances, for a reargument. See S. C., 3 N. Y. State Rep., 715.</p>

<p>Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial on the judge’s minutes.</p>

<p>1. Evidence—What admissible as declaration Against interest.</p> <p>Without having first proved that parties were partners, as alleged, and that a third party was tlieir servant, with authority to give a certificate of the kind offered in evidence, it was error to admit such certificate of said third party in evidence against the alleged partners as their declaration.</p> <p>2. Same—Entries in book —Not admissible against party ignorant AND NOT CONSENTING TO THEIR BEING MADE.</p> <p>It was error to allow plaintiffs to prove that they charged the work in question on their hook against the alleged firm, when the charge was made without the knowledge or consent of defendent, who is sued as a member of the alleged firm.</p> <p>8. Same—Partnership—Estoppel. '</p> <p>Where one of an alleged firm presented the plaintiffs a written request for their services, signed by him in the firm name, and in many other instances the defendant had allowed said party to use the same name. The defendant, in case of his consent to such use, would be liable absolutely to every creditor, and in case of his negligence, he would be liable to the creditors misled thereby.</p> <p>4. Same—When party cannot object to failure of proof.</p> <p>Where a party has the evidence of a certain fact excluded on the ground that it is immaterial, he will not be heard to complain that what he procured to be held immaterial was not proved.</p>

<p>Appeal from an order of the special term vacating an order to allow the defendant to examine the plaintiff before trial.</p> <p>The plaintiff’s complaint states a cause of action for services and expenditures rendered by the plaintiff to the defendant upon defendant’s employment. The answer is a general denial.</p> <p>The defendant’s affidavit upon which the order for examination was granted, in addition to the formal allegations required by section 872, Code Civil Procedure, alleges that the defendant expects to prove by the plaintiff “that he was not employed by the defendant, as alleged in the complaint.”</p>

<p>1. Bill of sale—Reformation—Pleading.</p> <p>A bill of sale executed with the intention of its having the effect of chattel mortgage will be so construed by a court of equity. The complaint alleging that the instrument was executed as a chattel mortgage, and that the parties at the time it was executed believed that it was for the security and not to pass the title absolutely, and that it was represented to-be a chattel mortgage, contains the necessary averments. An additional allegation of false and fraudulent representations'is not necessary for the' success of the action. It is enough if a mistake or error has been made, and the charge of fraud in such a case should be disregarded as surplusage.</p> <p>2. Court oe equity—Jurisdiction.</p> <p>It is a well settled principle of the courts of equity that when jurisdiction of an equitable subject matter has been once properly acquired, it will be retained until a full and complete disposition of the controversy. Following German Savings Bank v. Sharer, 25 Hun, 410. That the relief sought was one of which equity has cognizance, there can be no question. Citing Horn v. Keteltas, 46 N. Y., 606.</p>

<p>Divorce—Alimony—Contempt.</p> <p>While one is already in jail for a contempt in omitting to pay the sum due for alimony, and has no property which can be reached, and is unable to give security, a second order of a similar character will not be granted.</p>

The firm of Lamborn & Gray had for a long time prior to the 24th day of December, 1883, been carrying on business as bankers at Alliance, Ohio, and had kept an account with the defendants, and on December 24, 1883, there was a balance due Lamborn & Gray of $4,322.24.

<p>Statute op limitations—Code Civ. Pro., § 376—Administrator’s account.</p> <p>In Ms account the administrator’s simply stating that the claim had been presented and that he disputed it, is not a sufficient acknowledgment under section 376, Code Civil Procedure, to prevent the running of the statute of limitations.</p>

<p>1. Appeal—Review op record.</p> <p>The general term will not say whether or not the provisions of the Code have been violated when the order in question does not appear upon the record.</p> <p>2. Attorney’s lien—Substitution op new.attorney.</p> <p>Where the attorney has agreed to take his fees out of a fund to be recovered, and the substitution of a new attorney is obtained, the former retains his lien for services upon the fund recovered on the termination of the litigation.</p>

<p>Reference—Pleading—Accounting—Additional allegations.</p> <p>Where it appears from the action that the defendant is rightfully in possession of money or property, either in a fiduciary capacity or otherwise, in accord with the provisions of an agreement made with the plaintiff, and the action is brought for an accounting, additional allegations charging conversion or wrongful appropriation to his own use, are mere surplusage, and may be disregarded. Following Seyelken v. Meyer, 94 N. Y. 473; Dilman v. Shall, 61 ill , 56.</p>

<p>Appeal from judgment of the court at circuit dismissing complaint.</p>

<p>Contempt—Code Civ. Pro., § 2460—Examination op witness in special PROCEEDINGS.</p> <p>Although a witness, under section 2460, Code Civil Procedure, cannot refuse to answer certain questions, yet he will not be required to sign his deposition when his so doing might, in view of some authorities, subject him to legal liability not otherwise existing.</p>

<p>1. Executors and administrators—Uncollected assets.</p> <p>After the discharge of an executor and the revocation of his letters, if there remain uncollected assets his successor is the proper party to reach them.</p> <p>2. Same—When decree discharging, will not be opened.</p> <p>In the absence of established fraud, a decree discharging an executor will not be opened.</p>

<p>Appeal from order of surrogate, denying motion by Laura E. Byrne, to revoke letters testamentary, issued to Joseph Hart, and to compel the filing of an inventory and an accounting.</p>

<p>Appeal from judgment entered on verdict.</p>

<p>Reference—When trial should be had by court or jury—Fraud.</p> <p>Although when the primary purpose of an action is to obtain an accounting the action is referable; yet if fraud and deceit constitute the ground work, the right to a trial by jury or the court cannot be interfered with, and a motion for a reference should be denied.</p>

<p>1. Replevin—What detention not sufficient to sustain action of.</p> <p>This plaintiff leased of the defendant’s wife a farm and certain stock and chattels, at an annual rent agreed upon. By the terms of the lease, “all stock raised shall belong to the party of the first part, lessor, until this contract is fully paid and satisfied.” Subsequently, and during the term of the lease, the plaintiff assigned his interest therein. Assuming that the assignment was with the consent of the lessor, it was Held, that the possession of the cattle exercised by the defendant in driving them from the premises leased to another farm of the lessor, under the right of liis wife, by virtue of a security clause in the lease, was not a sufficient detention to sustain an action of replevin against him by this plaintiff.</p> <p>2. Lease—Terms of, performance—Title to stock.</p> <p>Held, that until the performance of his lease by the plaintiff, or until he was excused from performance thereof, the title to the stock was in the lessor.</p>

<p>Appeal from an order of the Onondaga special term vacating an injunction.</p>

The action is brought upon a policy of fire insurance for $2,500, issued by the defendant to the plaintiff upon his building in Rome, September 1, 1874, for one year, and the renewal thereof given, August 30, 1875. The property covered by the insurance was totally destroyed by fire, September 25, 1875.

<p>Damages—Fob injury to property—Liability for.</p> <p>Contractors agreed with the company by which they were employed, that they should be responsible for all damage that might he done to person or property or premises through which the line of the road might pass, in consequence of blasting rocks. Held, that they were responsible for damages from pieces of rock thrown upon the plaintiff’s houses by explosions in blasting on the line of the road.</p>

<p>Appeal from a decree of a surrogate’s court judicially settling the accounts of administrators.</p>

<p>Appeal from decree of surrogate settling accounts of Otis, as guardian.</p>

<p>1. Master and servant—Duty of employer to furnish scaffold.</p> <p>An employer is bound to furnish to his employees safe tools, machinery and appliances for their use. This includes a scaffolding built by the employer for his servants to work upon. If such scaffolding is not safe and substantial, by reason whereof an employee without fault suffers injuries, the employer is liable for the damage caused thereby, if the exercise of due care on the part of the employer would have prevented the injury. Follett, J., dissents, on the ground that defendant was not liable for the negligent act of his employee.</p>

<p>Appeal from a judgment convicting defendant of violating sepulture and the remains of the dead.</p>

<p>1. Submission of differences—General covenant for is void.</p> <p>A general covenant to submit any differences that may arise in the performance of a contract or under an executory agreement is a nullity.</p> <p>3. Contract — When composed of independent agreements some of WHICH ARE VOID AND SOME VALID, THE LATTER ARE ENFORCEABLE.</p> <p>Where a contract contains some provisions which are void, but embraces other independent agreements which are valid, the latter may he enforced.</p> <p>8. Same—Contract to adopt estimate of a party as basis of compensation is valid.</p> <p>Where by the terms of a contract for the performance of work at a rate of compensation therein agreed upon, the parties expressly agreed to adopt the estimate of another as the basis for determining the .amount of the final payment. Held, that such a contract fairly entered into was binding upon the parties to it.</p> <p>4. Same—Procurement of estimate agreed upon is condition precedent to action for compensation unless omission is excused.</p> <p>Held, that in the absence of fraud, even conceding the necessity of notice to the party performing the work on the making of the estimate in order to make it binding upon him, it was necessary in an action for compensation for the work to procure the estimate which was provided for by the terms of the contract or to show such demand and refusal to make a proper estimate as would excuse the omission.</p> <p>5. Same—What is not considered as sufficent to justify substitution OF OTHER EVIDENCE FOR THE ESTIMATE.</p> <p>Held, that want of notice in making the estimate was not sufficient to justify a recovery on other evidence of the work done.</p>

<p>Appeal from an order setting aside a judgment.</p>

<p>1. Counter-claim—Former judgment when a bar.</p> <p>A judgment recorded in an action growing out of the relations between the parties, is a bar to a counter-claim founded upon these relations as to which the former recovery was had.</p> <p>2. ' Accounting—Construction of agreement.</p> <p>On an accounting, if the defendent choses to allow an agreement to be construed upon the basis of a contract of employment, it cannot after-wards be claimed by him that the contract was one of partnership.</p>

<p>Trespass—Parties—Recovery of damages.</p> <p>It is a well-settled rule that where there are joint trespasses, the party injured may proceed against one, several- or all for the recovery of his damages, and that he may recover his whole damages against any one, and that he may bring separate actions against each trespasser; but that the satisfaction of a judgment obtained against any one of the trespassers is a bar to any further procedure in any of the other actions. The wrong is joint and several.</p>

<p>1. Lease -Action for rent—Counter-claim.</p> <p>Where in a lease there is an agreement that the lessees may remove property of the nature of fixtures, and on the expiration of the lease are prevented from doing so by the lessor or his agents, in an action for rent, the value of this property may be pleaded as a valid counter-claim.</p> <p>3. Agency.</p> <p>It is for the jury to determine in a disputed case whether or not persons acting for another have authority so to do.</p>

<p>Pleading—Complaint—Demurrer—Colorable claim.</p> <p>Where the complaint shows that the defendant discharged the plaintiff for reasons known to he false and which if true necessarily worked an injury to the plaintiff, it is immaterial whether the words were or were not slanderous if they were false and calculated to and did work an injury to the plaintiff; they gave him a colorable claim which will he sufficient on demurrer.</p>

<p>Appeal from judgment for defendants dismissing the complaint, and from order denying a motion for a new trial.</p>

<p>Contracts—When contracts made for the benefit of third parties ARE ENFORCEABLE BY THEM.</p> <p>The rights and obligations under an agreement should be limited to the contracting parties, unless it appears to have been entered into in whole or in part for the benefit of the person or persons claiming to come under its stipulations. Where by the terms of an agreement one company assumes the liabilities of another, on condition that the parties having claims against the latter, which claims constitute the assumed liabilities, perform certain acts, the performance of these acts is necessary before the claimants can obtain the benefit of the original agreement.</p>

<p>Appeal from order setting aside verdict in favor of defendant and granting a new trial.</p>

<p>Appeal _rom order of the special term vacating judgment in favor of plaintiffs on their motion.</p>

<p>Appeal from judgment entered on non-suit directed at the close of the plaintiff’s case.</p>

<p>Appeal from order denying motion for trial by jury.</p>

<p>Appeal from special term order denying defendant’s motion for a rehearing of an application to punish him for contempt, etc.</p>

<p>1. Negligence—Duty of common carrier to passenger—Presumption of NEGLIGENCE.</p> <p>A common carrier, having «undertaken to convey a passenger, is hound to take all the care to prevent injury which the nature of their business will allow and use the greatest care and skill in the management of their conveyance. The fact that the accident happened from the breaking of a piece of machinery raises the presumption of negligence in the selection of the same for the purpose, and especially so if the soundness of this piece would have avoided the accident.</p> <p>2. Same—Contributory njbgligence—Duty of officers.</p> <p>There being no indication of danger and no warning given, a passenger cannot be presumed to know that there is danger, in wharfing a vessel in the dock, that a hawser used would break. If such danger existed it is the duty of the officers of the ship to warn the passengers and to keep them out of the reach of danger,</p> <p>3. Damages—Bodily suffering and inconvenience—Excessive damages.</p> <p>A passenger injured while being transported by a common carrier may recover for the pain and inconvenience suffered. The court has power to set aside a verdict when the damages are excessive and should never hesitate to exercise the same in a proper case.</p>

<p>Appeal from an order of the surrogate striking out the answer of the appellant claiming a lien on certain property belonging to the estate of the deceased, in his possession.</p>

<p>Appeal from a judgment setting aside an assignment made by defendant for fraud.</p>

<p>Appeal from orders adjudging defendant guilty of contempt.</p>

Appeal by the plaintiffs from the order of the special term, relieving the purchaser, Antonio Cuneo, from his bid at foreclosure sale.

<p>Claim: and delivery—What facts sufficient to sustain action for— Dismissal of complaint when erroneous.</p> <p>In an action of claim and delivery of personal property, the plaintiff in his complaint stated that he was the owner of the property; that it was wrongfully detained by the defendant, and that the alleged cause of the detention was that the defendant claimed to have purchased the same from some person or persons unknown to the plaintiff. These allegations having been substantiated by proof: Held, that the plaintiff had made a plain case for the recovery of the property, upon which a verdict should have been directed in his favor, and that a dismissal of the complaint was erroneous.</p>

<p>Appear from an order and judgment of the Westchester special term sustaining a demurrer to the complaint.</p> <p>The action is brought upon an executor’s bond to recover from the principal and surety the penalty thereof. The plaintiff, Maria L. Hood, together with' defendant, Frederick Hood, were executors of the estate of Andrew Hood, deceased. The letters testamentary issued to Frederick Hood were revoked and a decree obtained in 1885 charging him with a certain amount of money which he was directed to pay over “to the executrix.”</p> <p>This action was originally commenced by Maria L. Hood individually and on behalf of others interested in the estate. On demurrer to the complaint, as it then stood, the court held that the action was improperly brought, inásmuch as the representative of the estate could alone institute and maintain the action, as the amount to be recovered belonged to the estate.</p> <p>Leave having been granted to amend, an amended summons and complaint were served in the name of Maria L. Hood, individually, as before, except only that the executrix was added as co-plaintiff.</p>

<p>Trust —When created—Deed of trust—Specific performance— Title.</p> <p>The plaintiff signed and recorded an instrument in relation to certain land here in question, which recited: “Now, therefore, know all men by these presents, that the said conveyance, so made as aforesaid, was made for the joint benefit and advantage of myself and of the trustees (naming them), and that they are, and each of them is, equally interested mw myself in all the benefits and advantages to be derived therefrom, and are equally liable with myself for all costs, expenses and liabilities attending- or in any way connected with the same. ” Held, it was not the office of the instrument to impress a trust upon the property or to operate as a defeasance to the plaintiff's deed of conveyance.</p>

This action was brought to remove a cloud from the title of premises situate in the city of Brooklyn and county of Kings.

<p>New Trial—Not granted to impeach witness—Nor to give cumulative EVIDENCE.</p> <p>A new trial will not be granted to give an accumulation of testimony upon one issue, nor merely to impeach a witness.</p>

<p>Negligence—New trial—Measure op damages—When verdict will NOT BE SET ASIDE AS EXCESSIVE.</p> <p>The rule is well settled that in actions for personal injury, when there is no certain measure of damages, a verdict will not be set aside as excessive, or a new trial granted, unless there is reason to believe that the jury were influenced by passion or prejudice, or have totally mistaken the rules of law by which the damages are to be regulated.</p>

<p>Executors and administrators—Duty as to investment of funds— interest.</p> <p>Where an executor held a small amount in trust to pay over the income as directed by the will, which sum was too small to invest on bond and mortgage with advantage, he was not chargeable with any more interest than the savings bank paid to him on the fund.</p>

<p>Appeal from an interlocutory judgment of the Dutchess county special term in an action to partition certain land.</p>

<p>Assignee—In bankruptcy—Where lien cannot be enforced against HIM INDIVIDUALLY.</p> <p>The defendant as assignee in bankruptcy of a certain firm collected certain sums of money in ignorance of the trust existing as to one-eighth of the proceeds in favor of the plaintiff’s firm and paid it over under the decree of the bankrupt court as part of the assets of the bankrupt firm. Held, that the defendant cannot be called upon to answer as an individual for the money in question.</p>

<p>1. Arbitration—The fact that the award is not within the submission IS GOOD GROUND FOR STAY OF EXECUTION UNDER AWARD, OR FOR NEW TRIAL.</p> <p>This plaintiff and the defendant’s testator formed a copartnership which was terminated by the death of the latter. By the articles of copartnership and agreements subsequently entered into the surviving partner had the right to take the business under conditions therein specified. The executor of the deceased partner brought an action to procure a settlement of the firm accounts and a settlement of the terms of the performance of the covenants respecting the purchases by the surviving partner. When at issue this action was submitted to arbitration, and an award made in favor of the executor of the deceased partner. This action was brought to stay the execution of the award or get a new trial. Held, that the fact that the arbitrator exceeded his powers would be a good cause for the relief asked.</p> <p>2. Same—What within the jurisdiction of the arbitrator to pass upon.</p> <p>The charge that the arbitrator had exceeded his powers was based mainly upon his award charging the surviving partner with $10,000 entered on a half-yearly account for depreciation in machinery. No such item had been charged in previous accounts. Shortly after the entry of the item ' the defend nt’s testator died in a distant part of the country and there was no proof that the charge came to his knowledge. The surviving partner by the terms of the agreement was bound to pay the costs of machinery as purchased, as shown by the firm books. Held, that the money paid the executor depending in some manner upon this item in the account being a stated account, and one which bound the estate of the deceased, and the proof making it a fair and even necessaiy inference that the deceased was not bound by it, the item was open for the arbitrator to pass upon, and that his conclusion was right as being based upon a course of business not proved to have been altered. Pratt, J,, held that the account was not an account stated and that by their pleading in the former action the plaintiff having recognized that this transaction had been accounted for, it was not included therein.</p> <p>3. Same—Account stated—What is not.</p> <p>Held, that the account was not under the evidence an account stated.</p> <p>4. Same—Allowance of item—When correct.</p> <p>By the agreement the surviving partner was to take the merchandise of the firm at the wholesale market price. The surviving- partner inventoried them at cost. Hid, that the award of the arbitrator allowing the difference to the deceased was correct. Pratt, J., dissenting, held that the arbitrator had wrongly calculated the price of the goods.</p> <p>5. Same—Partner not entitled to interest on payment of partnership DEBT MADE BEFORE ITS MATURITY.</p> <p>Held, that the surviving partner was not entitled to interest on payments made on a partnership debt before its maturity.</p> <p>6. Same—Award within submission not subject of review.</p> <p>Held, that the award of the arbitrator being within the submission could not be made the subject of review upon its merits.</p> <p>7. Same.</p> <p>Held, by Pratt, J., that evidence aliunde the submission and award might be received toxestablish the fact that the arbitrator exceeded his authority in fixing sum to be paid even in cases which otherwise appeared to be within his jurisdiction.</p>

<p>1. Pleading—Answer—Averment of payment.»</p> <p>It is not permissible in an answer to aver facts which make the averment of payment or no payment to depend upon the result'Of an action in which the plaintiff is not a party, and can never be.</p> <p>2. Practice—When trial of an action will not be stayed.</p> <p>A plaintiff is entitled to assert her claim and have it determined in her action, and not be stayed until an action in which she has no interest can be tried.</p> <p>3. Same—Supplemental answer—When too late.</p> <p>After the case has been closed and submitted to the referee, it is too late to get a supplemental answer, which adds nothing by way of a defense.</p>

The order was entered September 23, 1886. A similar motion had been made previously and denied by Justice Cullen, “without prejudice to renew said motion on further affidavits. The complaint was verified December 11, 1875, and issue was joined by the service of the answer in January, 1876.

<p>Mechanic's Liens—When they can be enforced.</p> <p>The plaintiffs holding certain claims upon which liens might be filed by them against the money still due the contractor for building a house, made application to the owner for some arrangement for their payment and she promised to notify them before any payment should be made to the contractor from the money then remaining in her hands and due to the contractor. Disregarding her undertaking the owner paid all the money to the contractor without any notification to the claimants who thereafter filed liens. Held, that the last payment was made in bad faith and would not defeat the operation of the mechanic’s lien law in favor of the plaintiffs.</p>

<p>Appeal from a judgment of the county court of Kings county affirming a judgment rendered and entered by justice of the peace of the city of Brooklyn in favor of plaintiff.</p>

<p>1. Will—Construction—Vested remainder.</p> <p>The devise of the estate to the testator’s wife for life or until her re-marriage, if she should re-marry, and upon her death or re-marriage the devise of the rest, residue and remainder, to the testator’s children, created a vested remainder in fee in the children. The fee was absolute at the time of taking, possession only was postponed.</p> <p>2. Same—Descendants—Lineal, when meant.</p> <p>A clause of the will provided that if either of the children should die leaving issue at the death of such child before the life estate fell in, such child’s share was given to the issue of such deceased child. Held, that it meant the lineal descendants of the deceased child.</p> <p>3. Same—When remainder becomes vested.</p> <p>The testator’s daughters, one of the residuary devisees died leaving a son. Held, her vested remainder went to her son although the life estate was then outstanding. That his estate became complete and not liable to divest even if he failed to outlive his grandmother who had the life estate.</p>

<p>Contract—Waiver of rights under—Subsequent demand of performance AFTER WAIVER DOES NOT EXCUSE FROM PERFORMANCE OF NEW CONTRACT BETWEEN PARTIES.</p> <p>One of these defendants owned a play, of which, by an agreement made between this plaintiff and defendant, the plaintiff was to become the sole manager in presenting to the public. Under this agreement, the play was to be furnished to the plaintiffs, but the defendant, being an actor, used it for the common interest, and actual delivery was waived. Under a new verbal agreement, the defendant agreed to rewrite the play. This latter agreement, however, was never executed. Held, that the plaintiffs never had title to the play; that they had only the right to cause its representation, and that the production of the play and its delivery having been under the written agreement waived, a subsequent demand for its production gave no right to the plaintiffs to carry out the verbal agreement.</p>

<p>1. Title—Sale of land—Purchaser is entitled to good and merchantable title.</p> <p>The purchaser of land upon a sale in partition is entitled to a good and merchantable title and if it falls short of this he may be relieved from his purchase.</p> <p>8. Same—What not regarded as sufficient title.</p> <p>The question whether a sale of a lot on a closed street carried title to the middle of the old street is not one which should be put upon a purchaser to settle by litigation.</p>

<p>1. Deed—Absolute on pace mat be shown to be a mortgage.</p> <p>A deed, absolute upon its face, may be shown to be a mortgage.</p> <p>2. Contract—When a writing does not contain the whole contract IT MAT BE SUPPLEMENTED BT PAROL PROOF.</p> <p>A written contract is deemed to contain all the agreement between the parties, but if it be proven that a portion of the agreement is not contained therein, paroi proof may be given to supplement the contract in that respect.</p> <p>3. Same—When writing contains the whole contract it may not be varied by paroi.</p> <p>When in the light of surrounding circumstances, the agreement is intended to express the whole contract, it will he conclusively presumed to do so, and oral evidence will not he received to vary it.</p>

<p>Appeal from an order refusing to allow an amendment of a notice of appeal from a justice of the peace.</p>

<p>Lease—Complaint—When erroneous to dismiss as not stating pacts SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION.</p> <p>It appeared by the complaint that parties leased to the husband of this plaintiff a lot of land for the term of ten years ending February, 1883. Upon this lot the husband of the plaintiff had erected a building in such a manner that it could be removed at the expiration of the lease. The lease together with the building were transferred to the plaintiff by her husband through an intervening trustee. The plaintiff in 1875 was in possession of this building as owner, and during that year assigned the lease together with the building upon the premises leased to the defendants for the unexpired term and dilivered possession thereof. The complaint further alleged that on the expiration of the lease the plaintiff became entitled to the possession of the building with the right to remove it from the premises, but that prior to that time the defendants converted the building to their own use and sold and disposed of it to some third party, and that upon demand made at and since the expiration of the lease they have refused and neglected to give it to her, wherefore she demanded damages. Held, that a dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action was erroneous.</p>

<p>1. Check—Indorser of—Guarantees only signature of drawer.</p> <p>The acceptor of a bill of exchange, by his acceptance, guarantees only the genuineness of the signature of the drawer of the bill, and not the body of the instrument, and the same rule applies to the indorser of a ■ check.</p> <p>2. Same—Money paid upon a raised check may be recovered.</p> <p>But when money is paid by mistake upon a raised check, neither party being in fault, it may be recovered back as paid without consideration.</p>

<p>Vessels—Lien on—Under Laws 1862, chap. 482.</p> <p>Where fraud is shown in the giving of notes in payment for materials furnished for vessels, the receipt of such notes does not suspend the lien which the vendor had under Laws 1862, chapter 482. See ante, p. 725.</p>

<p>Practice—Pleadings—Complaint—Service of amended—When regular.</p> <p>This plaintiff after the denial of a motion made for the appointment of a receiver, but before the expiration of the defendants’ time to answer the complaint, served an amended complaint. Held, that plaintiff’s practice was regular and that a motion by defendant to strike out the amended complaint should be denied</p>

<p>Restitution—Of costs paid under decision subsequently reversed.</p> <p>A judgment, without costs, having been obtained by this plaintiff was affirmed, with costs, by the general term, and the costs adjusted. Upon an appeal to the court of appeals, the judgment was reversed and the complaint dismissed, with costs. Held, that the costs paid in compliance with the judgment of the court below should be restored.</p>

<p>False Imprisonment—Damages for—Compensatory and exemplary.</p> <p>= This defendant, as attorney, secured a judgment against the plaintiff and issued thereon an execution against his person, under which he was arrested and imprisoned. The execution so issued was not justified by the judgment and was illegal and the imprisonment resulting from its issuance was false. Held, that there being no proof of malice on the part of the defendant the jury were at liberty to award the plaintiff such damages as necessarily and naturally resulted to him from the arrest, but that a verdict awarding damages manifestly in excess of these should be set aside.</p>

Appeal by the plaintiff from a judgment rendered at special term, held in and for the county of Queens, whereby the plaintiff’s complaint was upon the merits dismissed, with costs; also from an order made by the same court, denying plaintiff’s motion for a new trial; also from an order of same court, making the defendant Rosalie Adele Oakley a party defendant; also from an order of the same court, making the defendant Martha Louise Rutherford a party defendant.

<p>1. Title—Charter — Right of parties under ancient—How determined.</p> <p>The parties both claim title to the land which is the subject of this action by virtue of charters from the English crown. The grant to the town reserved something, the boundaries of which are not at this date distinctly ascertainable. In the year 1693 the defendant’s ancestor with the assent of the governor-general of New York purchased either the whole or a part of the reserved lands, to which action the town assented by vote. Thereafter and in the same year, by a warrant procured from the governor-general, the purchaser surveyed the lands so purchased, fixing the northern bounds as against the town patent and received the governor-general’s patent for those lands which was read at the town meeting and assented to. Held, that the charters being of extreme age and the boundaries uncertain, controversies should be adjusted by the explanation of the patents by long-use thereunder.</p> <p>3. Same—Long continuance of acts under—Effect of in determining rights.</p> <p>Held, that after long continued and decisive acts by the parties under the charter mutually acquiesced in, the parties could not question them.</p>

A motion to dismiss the proceeding herein in the general term and to strike the cause from the general calendar upon the ground that the certiorari should have been returnable at special term.

Appeal taken by the plaintiff from the judgment entered herein dismissing the plaintiff’s complaint, with costs. The facts, briefly stated, are as follows: William H. Hozier died February 28, 1873, in New Jersey, and his father, the defendant, qualified as his executor March 17, 1873, and continued to act until 1878.

<p>Principal and agent—Power of agent to borrow money.</p> <p>An agent clothed with general powers for the transaction of business-. does not have power to borrow money in the name of his principal.</p>

<p>Bills and notes—Delivery—When and how proved.</p> <p>Where the defense interposed in an action on promissory notes is a denial of the delivery of the notes, and a denial that they ever had any legal inception, it becomes necessary for the plaintiff to establish the circumstances under which he became the owner of the notes and the amount he paid for them or that he paid value and was an innocent, honest holder.</p>

<p>Appeal from an order punishing defendant for contempt for not obeying a subpoena.</p>

<p>Arrest—Illegal—Restitution no bar to action for damages.</p> <p>The restitution, by the sheriff of the money coerced from the plaintiff by an illegal arrest, is no bar to an action for damages.</p>

<p>Libel—Privileged communication—Malice a question for the jury.</p> <p>In a criminal prosecution for libel, the court having charged the jury that the communication complained of was privileged, submitted to them the question of express malice. Held, that it was a question for the jury to decide whether there existed any ill feeling between the defendant and the party against whom the communication was directed, and whether that feeling, assuming it to exist, was of such a nature as to fall within the meaning of the term malice, proper instructions as to that meaning having been given them.</p>

<p>1. Cause of action—What may be united—Code Civ. Pro., § 484, sued. 9.</p> <p>It is provided by Code of Civil Procedure, section 484, subdivision 9, that two or more causes of action upon claims arising out of the same taansaction or transactions, connected with the same subject of action, and not included with the antecedent subdivision, may be united in the same complaint.</p> <p>2. Bond—Cancellation of—Action for—Necessary parties.</p> <p>There were illegal acts done during the continuance of a partnership, and a bond was given by the executors of a deceased partner with one of the defendants, as security to the surviving partners not to make the wrong public; also, a sum of money was paid to that defendant by this plaintiff out of the estate of the decedent as his security that the executors would keep the bond a good cause of action against all the defendants: Held, that the defendant to whom the money had been paid could not be compelled to return it unless the bond were canceled, and that in such an action for that purpose the surviving partners must lie brought in.</p>

<p>Verdict—Question of setting aside as.against the weight of evidence—Is addressed to the discretion of court.</p> <p>The question as to whether a verdict ought to be set aside as against the weight of evidence is one not governed by any well-defined rules, but depends in a great degree upon the peculiar circumstances of each case. It is addressed to the sound discretion of the court and involves the inquiry whether substantial justice has been done.</p>

<p>Husband and wife — Separation—When husband liable for necessaries.</p> <p>Where a husband has forced his wife to leave his house and had thereafter refused to provide for her, he is liable for necessaries furnished to her in good faith and in ignorance of the pendency of an action for separation, even to one who was forbidden to trust her on his account. Gatlin v. Martin, 69 N. Y., 393, distinguished.</p>

<p>Appeal from an order substituting as defendants the indemnitors of the sheriff in the place of the sheriff, under section 1421, Code Civ. Pro.</p>

<p>Appeal from order denying plaintiff’s motion to vacate, the order of reference.</p>

<p>Appeal from order denying plaintiff’s motion for leave to discontinue the action. Also appeal from judgment in favor of the defendant entered upon the report of a referee.</p>

<p>1. Bills and notes—Consideration.</p> <p>A due bill was made by the defendant, payable to the plaintiff, the consideration therefor being the transfer of an interest in a business. The agreement being that the amount of the due bill should be paid, unless the defendant being dissatisfied with the business, should return to the plaintiff what was transferred to defendant. The defendant afterward transferred it to a third party, as an assignee for the benefit of creditors. Held, there was a legal and valuable consideration for the due bill.</p> <p>2. Same— Confirmation of contract.</p> <p>Said assignment was made after the discovery of alleged fraudulent representations. Held, that the assignment was a confirmation of the contract.</p>

<p>Appeal from an order made at special term denying a motion made by plaintiff for a discovery, inspection and copies of the defendants’ sale books, etc., containing transactions with plaintiff’s testator from 187U to 1885.</p>

<p>1. Taxes—Comptroller’s judicial power.</p> <p>The state comptroller, as between the purchaser at a tax sale and the state, under whose authority he acted, may decide questions of regularity relating thereto. He has no judicial power to determine a controversy between other parties, but to “ discover ” a fact which, when found, is to determine his own conduct.</p> <p>2. Same—Laws 1855, chap. 427, §§ 83, 85.</p> <p>Laws 1855, chapter 437, sections 83 and 85, were enacted for the benefit only of purchasers who had paid their money on the strength of the title of the state, and gave no right to an owner of the lots either to make the demand that the comptroller cancel the sale, or upon his refusal, to renew that determination.</p>

<p>Appeal from, order denying motion to vacate attachment.</p>

<p>Injunction—When vacated—Regularity of proceedings.</p>

<p>Mortgage foreclosure—Parties.</p>

<p>Appeal—When party relieved from printing papers</p>

<p>Appeal from judgment of the special term</p>

<p>Appeal from order directing plaintiff to file security for costs</p>

<p>Appeal—Stay of proceedings pending—Security necessary</p>

<p>Appeal from judgment directed at circuit in a mandamus proceeding.</p>

<p>Appeal from judgment dismissing complaint.</p>

<p>Stay of proceedings—Necessary security to entitle party to—Code Civ. Pro., § 1331.</p>

<p>Attachment—Regularity of proceedings.</p>

<p>Appeal from order denying motion to vacate order in supplementary proceedings.</p>

<p>Appeal from order denying motion to change the place of trial.</p>

<p>Reference—When and in what respects order of modified.</p>

<p>Judgment—Ejectment—When judgment opened, modified or vacated.</p>

<p>Ejectment—Vacation of judgment—Upon receipt for cost and production of a release—Plaintiff cannot keep consideration and AT SAME TIME CLAIM TO RESCIND.</p>

<p>Mandamus—When granted.</p>

<p>Municipal corporation—Liability for defective sidewalk—Contributory NEGLIGENCE.</p>

<p>Counter-claim—Money received for another’s use.</p>

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

<p>Purchase from unauthorized person—Title to goods sold does not pass.</p>

<p>Sheriff—Right to refuse to sell goods seized on levy.</p>

<p>Assessments—Summary review.</p>

<p>Appeal from an order opening plaintiff’s default, on condition that he file security for costs.</p>

<p>Appraisal- of Commissioners—Award for damages when report will NOT BE SET ASIDE.</p>

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

<p>Sewerage—What sufficient evidence of carelessness to relieve TOWN AUTHORITIES'OF LIABILITY.</p>

The affidavit of the plaintiff alleges that she paid and delivered to thedefendant the sum of $2,500 to invest for her; that he received it for that purpose; that it bad been demanded from him; that he had appointed a time when he would return it, but had failed to refund, and that he had converted the money to his own use.

<p>Appeai. from a judgment entered upon the report of a referee and from an order denying a motion to set aside said report.</p>

<p>Practice—Bill of particulars—When not granted.</p>

<p>Title to property—When question of fact—Verdict of jury will NOT BE DISTURBED.</p>

<p>Appeal from a judgment for costs entered in favor of defendent on a verdict in favor of plaintiff for the sum of twenty-five dollars.</p>

<p>Appeal from order denying new trial and from judgment on verdict.</p>

<p>Appeal from decree of the surrogate refusing probate to the second codicil to the will of Alexander Foster, deceased.</p>

<p>Appeal from judgment on report of referee.</p>