Volume 7 — New York State Reporter

<p>1. Insurance (marine)—Acts of masters or mariners.</p> <p>Insurers are not responsible for the fault, negligence or misconduct of the master or mariners not amounting to barratry.</p> <p>2. Same—Bill of lading—Subrogation of insured rights to insurer.</p> <p>It was agreed in a certain policy of marine insurance that the assured would subrogate to the insurer all their claims against the transporters of said merchandise not exceeding the amount paid by said insurers. After making this agreement with the insurers the plaintiff contracted with the transporters, that in case of any loss, detriment, etc., to any of the property during transportation, whereby any legal liability or responsibility should" be incurred by the terms of said contract, the carrier should have the full benefit of any insurance that might be, or have been, affected upon or on account of said goods. The evidence showed that the goods were lost through the negligence of the transporters. Reid, that but for this clause in the bill of lading the defendant would have a right of action against the carrier for damages.</p> <p>3. Same—Pleadings—Proof of loss—Waiver must be alleged in complaint.</p> <p>Proof of loss is a condition precedent to maintaining an action for insurance, and.if the plaintiff relies on a waiver of the proof of loss instead of upon the fact that proof of loss was made, such waiver must be alleged in the complaint and proved on the trial.</p>

<p>Conversion—Action for—Burden of proof.</p> <p>In an action for a wrongful taking of a boat about January 15,1885, which was destroyed by drifting ashore on said date, the evidence showed that the defendant had a right to the possession of said boat as care-taker by the consent and direction of the plaintiff up to the latter part of December, 1884. The only question was whether this license or general authority, as care-taker of the boat, continued in defendant after said December. Held, that the plaintiff must prove affirmatively that this license or authority had been revoked before said January 15, 1885. ,</p>

<p>Appeal by defendant from judgment entered upon the report of a referee.</p>

The action was brought by the plaintiffs as executors against the defendant as endorser of a promissory note made by the firm of Masterton & Co., of which firm the defendant was a partner.

<p>Appeal by register from order taxing his fees as register, etc.</p>

<p>1. Trade mark—Name—Right to use.</p> <p>The use by an individual of a name such as would be appropriate to a corporation, is not a violation of any statute of the state and will not deprive the person using it of the right of protection of it as a trade mark.</p> <p>2. Same—Injunction—When granted—When one is an assistant.</p> <p>The defendant secured the services of a minor employee of Colton’s (a dentist, having a large business in extracting teeth), advertised his own business and place of business under the heading conspicuously displayed, “ Colton’s late assistant,” for the purpose of inducing the public to believe that Colton’s assistant had left him and was carrying on business at a place other than Colton’s, viz.: defendant’s place. Held, a proper case for the interference of the court by injunction restraining defendant; that the employee was not an assistant. Van Wyck v. Horowitz, 39 Hun, 237, distinguished.</p>

<p>Assignment for benefit of creditors—Filing proof of claim—When' CREDITOR NOT ESTOPPED THEREBY FROM ATTACKING ASSIGNMENT.</p> <p>A creditor not having had knowledge, at the time he filed with the assignee his proof of claim, that an assignment was fraudulent and void, is not estopped by the mere fact that he filed a claim from attacking the assignment. Rapalee v. Stewart, 27 N. Y. 310, and Matter of Holbrook, 99 N. Y., 539, distinguished.</p>

<p>1. Title—Resulting trusts—1 R. S., Uses and trusts, §§51, 52.</p> <p>Ho trust results in favor of a person supplying the consideration for the purchase of land where the title is taken in the name of another, except where the title is so taken without the knowledge or consent of the former. See 1 R. S., Uses and Trusts, sections 51 and 52.</p> <p>2. Judgment—When will become a lien on real property, the title TO which is taken in the name op a party other than the one furnishing the consideration.</p> <p>o</p> <p>Where the surviving member of a copartnership, in his own name, took title to land, for the conveyance of which the consideration was furnished by the copartnership, the representatives of the deceased members having knowledge of the manner in which the title was taken, and having consented that the deed should be made to that partner individually: Held, that a judgment recovered against that partner individually attached as a lien upon the land.</p> <p>3. Contract for the conveyance of lands—What is not performance OF.</p> <p>A contract having been made between the defendants and the plaintiff, whereby the defendants agreed to convey to the plaintiff the fee simple of premises, subject to a certain mortgage: Held, that the existence of an unsatisfied judgment, which formed a lien upon the land, vitiated the title so that this plaintiff was not bound to receive it.</p> <p>4. Same—Deposit and expenses of examination of title may be recovered BY ACTION.</p> <p>Held, that the plaintiff might recover in an action against the defendants a deposit made by him, and the expenses incurred in the examination of the title.</p>

<p>Appeal from a judgment entered upon a verdict of the Erie county court and from an order of that court denying motion for new trial.</p>

<p>1. Evidence—Written contract—Terms of may not be varied byparol EVIDENCE;</p> <p>When a contract is consummated by a written instrument the presumption of law is that it contains the whole of the agreement and neither party thereto will be allowed to prove orally, representations which preceded or accompanied the execution of the instrument.</p> <p>2. Same—Written contract of sale—Warranty cannot be shown ORALLY.</p> <p>Held, that where there was evidence sufficient to warrant the finding that a contract of sale entered into by parties was embodied in a written instrument, oral evidence could not be given of representations preceding the writing and amounting to a warranty.</p>

<p>Appeal from a judgment entered upon a verdict rendered ■at the Monroe circuit.</p>

<p>1. Principal and agent—Extent op authority op agent—Warranty by.</p> <p>An agent employed to do an act is authorized to do it only in the usual way of business.</p> <p>3. Same—General agent—Usage of business.</p> <p>The usage of the business in which a general agent is employed furnishes the rule by which his authority is measured. Hence, the general selling agent has authority to sell on credit, to warrant the soundness of the article sold when such is the usage of the trade. Cases cited.</p> <p>3. Same—Evidence—Admission—When failure to answer letter is NOT.</p> <p>The omission of one of the parties to a transaction to answer a letter written to him, after the transaction, by the other party thereto, giving the latter’s version thereof, may not be taken as an admission of the truth of the statement in the letter. They are mere declarations of the writer in his own behalf, which do not demand an answer, and are not admissible as evidence against the person to whom the letter was sent.</p>

The action was brought to require the defendant to remove an alleged obstruction in the private way of the plaintiff, and to restrain him from further proceeding with the work of such alleged obstruction.

<p>1. Marriage—What constitutes.</p> <p>A present agreement between parties competent to take each other for husband and wife, is enough in this state to constitute a valid contract of marriage.</p> <p>3. Same—When presumed.</p> <p>A man and woman lived and cohabited together and held themselves out to the community in which they lived, to be man and wife for thirty years and had five children born to them. They were generally reputed in said community to be husband and wife. Held, that there was enough on which to found a presumption of marriage if. there was nothing in the case to repel such presumption.</p> <p>3. Same—When not presumed.</p> <p>Within a year after they had ceased to live together the man was ceremonially married to another woman, and the following year the first-mentioned woman was ceremonially married to another man. Held, that a presumption of a contract of marriage cannot be raised when the direct consequence of so doing would involve both parties to it in the crime of bigamy. Following Foster v. Hawley, 8 Hun; 68.</p>

<p>Motion for a new trial on exceptions taken at the Tates circuit and ordered to be heard in the first instance at the general term.</p>

<p>Appeal from an order denying a motion for a new trial in an action tried at the Steuben circuit.</p>

<p>Appeal from, three several orders of tho Monroe special term.</p>

<p>1. Divorce—Action for—Rule 73—Interpretation of.</p> <p>It is provided by rule 73 of the general rules of practice, that a judgment shall not be rendered for a divorce unless it appears that five years have not elapsed since the discovery of the fact that the adultery charged in the complaint had been committed, and where, at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed, that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff. Held, that this latter clause had reference to cases where the parties were living together in adulterous intercourse.</p> <p>2. Same—Code Civ. Pro., § 1758—Adultery of plaintiff bars right to decree — When alleged in answer must be passed upon at trial.</p> <p>It is provided by Code Civil Procedure, § 1758, that the plaintiff is not en-entitled to a divorce, although the adultery of the defendant is established, where the plaintiff has also been guilty of adultery under such circumstances, that the defendant would have been entitled, if innocent, to a divorce. Held, that an action for a divorce having been referred to a referee and the adultery of the plaintiff having been alleged in the answer, it became an issue necessary to be determined by the trial, and that the court could not assume that a conclusion of law found by the referee that the plaintiff was entitled to judgment, was a finding of this issue in the negative.</p>

<p>Contract—Modification—Evidence—When material.</p> <p>One Emerich made a contract with defendants to peel a quantity of hemlock bark for defendants, for which they agreed to pay a certain price per measured cord. Subsequently, Emerich delivered his contract to the plaintiff, abandoning the job. The plaintiff finished the work under the contract. On the trial, the defendants offered to show that a subsequent contract had been made with Emerich; that the bark was to be weighed instead of measured. Held, this evidence would have been material had there not been a subsequent agreement between the plaintiff and defendants on the subject.</p>

<p>1. Account stated—Mutual assent to items and balance is necessary TO CONSTITUTE—MAY BE INFERRED.</p> <p>In order that there may be an account stated, there must be a mutual examination of the claims presented by each of the parties, and an agreement between them as to the correctness of the allowance and disallowance of such claims, and of the balance struck upon the adjustment of the accoupt. The agreement of the parties need not, however, be express, but may be inferred from circumstances, as by the retention without objection of an account rendered.</p> <p>3. Same—What necessary to be proved in order to open account STATED.</p> <p>An account stated can only be opened upon proof by the party seeking to do s6 that he has been misled by fraud, mistake, or manifest error.</p>

<p>1. Criminal trial—Evidence—Confessions made in the presence of accused—When admissible.</p> <p>Confessions made by the injured person connecting the accused with the crime, are admissible as against the accused when made in his presence and when he is subjected to no restraint, but is free to deny the assertion, if he choose.</p> <p>2. Same—Conflicting evidence—Weight of evidence.</p> <p>Where the evidence is conflicting, the case is one for the jury to determine the weight and effect of the evidence, and their determination is to be regarded as final. Though the jury might have found differently, yet this is not such an absence of testimony as would warrant the court in holding that the verdict was against the weight of evidence.</p> <p>3. Same—When exception is of no avail—When unnecessary—Code Grim. Pro., § 527—Technical errors disregarded—§ 542.</p> <p>Though immaterial, irrelevant and incompetent evidence be received, the exception taken will be unavailable if the same evidence has previously been substantially received during the trial without exception. Under section 527 of the Code of Criminal Procedure, an exception is not indispensably necessary, if the evidence can be seen to be of any material detriment. Mere technical errors, not affecting the substantial right, are required to be disregarded by sec. 542, Code Criminal Procedure.</p> <p>4. Same—Abortion—Penal Code §294—Question of fact—Evidence of an accomplice—Code Crim. Pro., § 399—Penal Code, § 295.</p> <p>It is for the jury to determine whether the abortion is or is not performed to preserve the life of the woman, or whether or not the instrument is introduced either for the preservation of the woman’s life or that of the child. The testimony of the woman on the trial of the one who performs the abortion, is not that of an accomplice, which under section 899 of Code Criminal Procedure needs corroboration. The woman is guilty under Penal Code, section 294, of a different crime from that of which the one who performs the abortion is guilty, under section 295.</p>

<p>1. Replevin— Code Civ. Pro., §§ 1736-1730 — Form of verdict and JUDGMENT.</p> <p>A verdict which substantially conforms to the requirements of the Code, sections 1736-1730, will be sufficient in form, and the same rule applies to the judgment.</p> <p>3. Same—On ground of fraud—Return of money received.</p> <p>The rule as to the restoration of property received when the contract is rescinded, does not apply to an action of this character.</p> <p>3. Fraudulent representations—Continuing force of the same.</p> <p>A statement once made as of a fact, which cannot vary or he varied, is continued from time to time, as long as the relations of the parties to which it refers are continued.</p>

<p>1. Guaranty—Agreement to pay the debt of another—Strict construction OP THE SAME.</p> <p>Where the guaranty is for the benefit of an individual who afterwards becomes a member of a partnership, the partnership cannot maintain an action against the guarantor on the agreement. The contract is one said to be in strictissimi juris.</p> <p>2. Pleading—Answer—Form of denial.</p> <p>A denial of .any knowledge or information sufficient to form a belief of any fact contained in the complaint which is not admitted in the answer, is sufficient. Following McGuinness v. The Mayor, 13 Weekly Dig., 522.</p>

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

<p>Accounting—Action for—Unlawful contract.</p> <p>The proper criterion whether an action may he maintained, is whether the plaintiff has a cause of action independently of the unlawful contract, whether lie can maintain his action without depending upon it as invoking its enforcement. If this cannot he done, the action cannot be maintained. But the action can he maintained when the attempt is to enforce certain rights, etc., only remotely connected with the unlawful contract, and when dependence is in no measure placed upon the contract itself. See S. C. on former argument, 4 N. Y. State Rep., 431.</p>

<p>1. Fraudulent representations—Sale of ship—Question of fact— ELEMENTS OF FRAUD.</p> <p>Where the question of fact is as to whether or not certain representations were made by the vendor on the sale, and the evidence is conflicting, it becomes necessarily a question of fact to be determined by the jury. They are also to determine, having found that the representations were made, whether the evidence is sufficient to support them in the conclusion that these representations relied upon were untruthful. But further than this the law requires it to be proved that the vendor knew that these representations were untruthful, or that he did not know that they were truthful, that they were made with the intent to deceive the vendee and induce him to purchase, and that he did suffer injury.</p> <p>2. Same-Evidence of fraud—Sufficient to sustain verdict.</p> <p>The law permits proof of circumstances which may logically support the inference that a fraudulent intent was an element in the transaction in controversy, when the evidence tends to show that the property sold was inferior in quality to that which it was represented to be, and that the vendor knew these facts, and the jury determined from the evidence that these representations were made to deceive the vendee, the court will be justified in refusing to dismiss the complaint, or to set aside the verdict as contrary to the evidence.</p> <p>3. Same—Representations after the contract has been made— Evidence.</p> <p>Evidence of the representations made after the execution of the contract will be admissible, not to prove other fraudulent acts, but to show what information the vendee has received, whose duty it was to inspect the property for himself.</p> <p>4. Same—Rule of caveat emptor applied.</p> <p>The rule of caveat emptor is applied as to such defects as are discernible by ordinary observation, but the vendor will be responsible if the defects are not open to ordinary observation, or if he conceal defects, or throws the vendee off his guard. The vendor is liable, even though the representations made by him were not known to be false, if the exercise of common sense and ordinary prudence were sufficient to put him on inquiry and would have led him to a knowledge of the condition of the property sold.</p>

<p>1. Pleading—Complaint—Sufficiency of on demurber.</p> <p>The complaint, on demurrer, is deemed to allege what can be implied from the allegations by reasonable and fair intendment, and if there can be gathered from the allegations of the complaint made positively, inferentially, impliedly, argumentatively and by reasonable intendment, sufficient facts, the demurrer will be overruled.</p> <p>3. Corporations — Riqht of the minority stockholders — Duty of THE MAJORITY.</p> <p>A majority of stockholders will not be permitted to sanction a transaction which is the outcome of a scheme dishonest or fraudulent in its inception and development. The minority stockholders have rights which, under such circumstances, must be recognized. The majority may legally control the company’s business, but in thus assuming control, they take upon themselves the correlative duty of diligence and good faith. They cannot manipulate the company’s business in their own interests to the injury of the corporation.</p>

<p>Negligence—Alighting from train while in motion—Invitation.</p> <p>It is negligence, under ordinary circumstances, to attempt to alight from- a train of cars while they are in motion Where there are gates to prevent passengers from getting off the cars, and the man in charge opens them, this is an assurance of safety, and will be construed to be an invitation.</p>

<p>Certiorari to review proceedings dismissing the relator from the police force.</p>

<p>Practice—Reduction of the verdict—Conflicting evidence</p> <p>Where the.evidence is conflicting as to how a payment has been applied, and the question of fact is passed upon by the jury and the verdict rendered for the amount due in accordance with the facts as they find them proven, the court will not interfere and reduce the verdict.</p>

<p>1. Evidence—Code of Civil Peo., § 829.</p> <p>The testimony of a party as to a personal transaction with the deceased is rendered incompetent by section 829 of the Code when the opposing party claims title through the deceased.</p> <p>2. Same—Admission of incompetent evidence without objection.</p> <p>The objection to certain evidence will be overruled if previously the same has been admitted without objection and no motion to strike it out has been made.</p>

This is an appeal from an order setting aside a verdict upon the grounds that the verdict was against the evidence and that the damages were excessive.

<p>Appeal from a judgment recovered on the verdict of a jury directed by the court.</p>

<p>Appeal from so much of the decree of absolute divorce which awards the sum to be paid to plaintiff for her support and that of her four children.</p>

<p>Bills and notes—Oral evidence not admissible to prove agreement AS TO THE MAKING.</p> <p>After the agreement, in the form of a bill or note, has been reduced to writing, and it has been signed and accepted, oral evidence is no longer admissible to prove what agreement was proposed to be made as to the payment of the money.</p>

<p>1. Practice—Separate grounds for action—Failure in the proof of one. ,,</p> <p>Where the complaint sets forth two grounds for action, the failure to prove one will not affect the other allegations of the complaint.</p> <p>2. Pleading—Complaint in action for money had and received— Sufficiency of allegations.</p> <p>The allegations in the complaint will be sufficient in an action for money had and received when the plaintiff alleges his interest in the money, the receipt of the same by the defendant, the amount justly owing the plaintiff and the defendant’s promise to pay, and his failure to do so.</p>

<p>Appeal from judgment dismissing the relator’s proceedings by mandamus herein.</p>

Appeal by Garrett Z. Snider, executor, etc., and Edward Horace Straut from an order confirming the report of a referee and authorizing the trustees to mortgage property situated upon Horatio street, in the city of New York.

<p>Appeal from an order setting aside an order for the taking of a deposition, and suppressing the deposition taken under it.</p>

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

<p>Appeal from a judgment recovered on the dismissal of the plaintiffs’ complaint at the special term.</p>

<p>Trustees—Testamentary—Petition to pay incomes—Plea in abatement.</p> <p>If a party who is required to answer any asserted liability, desires to rest upon a defense in the nature of a plea in abatement, that another proceeding is pending for the same cause, it is his duty to make the substance of the defense clearly apparent. Quaere, whether such a plea in this proceeding can be applied.</p>

<p>1. Will—Probate of—Code of Civ. Pro., 2617, 2621 and 1865.</p> <p>It is necessary for a person in order to avail himself of the provisions of the Code, sections 2617, 2621, 1865, to establish by competent proof that he belongs to one of the classes of persons specified, and he must also prove the provisions of the prior will.</p> <p>2, Same—Revocation in will.</p> <p>The will admitted to probate expressly revokes all former wills and thus in terms unmistakable expresses the intentions of the testator.</p>

<p>1. Arrest—Order of—Grounds fob granting.</p> <p>This action -was brought to recover damages for the conversion by the defendant of certain stock and dividends received from the same. An order of arrest was issued upon the affidavit of the plaintiff, which set forth and stated the purchase of the shares by the defendant for the plaintiff with money furnished to him by the latter; it was further stated that the shares were left on deposit and in the possession of the defendant, and that while they so remained he received scrip dividends upon them; that the defendant had sold the shares, and refused to deliver them or pay over the dividends to the plaintiff, but had converted them to his own use. Held, that the affidavit sufficiently stated a case against the defendant to warrant the making of the order of arrest.</p> <p>2. Same—Affidavits in opposition—Necessity to consider.</p> <p>Held, that it was necessary to consider whether this affidavit was not so far overcome in weight and effect by affidavits on behalf of the defendant as to require the order of arrest to be vacated, for although the action was for conversion of property, the plaintiff had no more right to subject the defendant to an unauthorized arrest than if the charges upon which the order rested were not a portion of the subject matter of the cause of action.</p> <p>3. Same—Action for conversion—When not maintainable.</p> <p>The proof by the affidavits presented by the defendant concerning his • alleged misconduct, in opposition to those of the plaintiff, decidedly preponderated in his favor and tended to show that the shares had been sold at the desire of the plaintiff and under his authority Held, that an action for their conversion could not be maintained by the plaintiff.</p> <p>4. Same—When vacated—Order void in part cannot stand.</p> <p>Held, that the claim for conversion forming the larger part of the plaintiff’s cause of action, the order of arrest could not be sustained, for it is not allowable to include with a cause of action on which a party may be arrested another upon which the law will not permit him to be held to bail. That the order being void in part, must be'wholly vacated and set aside.</p>

<p>Appeal from a judgment recovered at the special term.</p>

<p>Appeal from judgment in favor of defendants, entered on the verdict of a jury at circuit, and from- order denying motion for new trial.</p>

<p>Appeal by the two infant defendants, Mary A. Howard and James C. Howard, claimants for surplus moneys arising upon sale on foreclosure of mortgage.</p> <p>The questions presented by the claim of these infants arise under the following provisions of the will of Mary C. C. Morison:</p> <p>First. I give, devise and bequeath all my estate, both real and personal, to my executors hereinafter named in trust and for the uses and purposes hereinafter named. * * *</p> <p>Fourth. I give, devise and bequeath my property, No. 53 West Thirty-fifth street, New York city, and the rents, profits and income thereof, to my nieces Emily Augusta White and Josephine M. Leaycraft, for and during their natural lives, and share and share alike.</p> <p>Fifth. Upon the death of the said Emily Agusta White, I give, devise and bequeath her share in said property to my four nieces, Josephine M., Mary, Lizzie and Malvina Leaycraft, share and share alike.</p> <p>Sixth. Upon the death of said Josephine M. Leaycraft, I give, devise and bequeath her share in said property to her children, share and share alike.</p> <p>Seventh. Whenever in the judgment of .my executors, they shall deem it best to sell said property, I empower them to do so, and in the event of such sale, I order and direct them to safely invest the proceeds, and to pay the annual income to my said nieces Emily Augusta White and Josephine M. Leaycraft, share and share alike, and upon the death of either, to pay her share of the principal as I have above directed.</p>

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

<p>1. Wills—Construction of clauses—Residuary clause and one constituting a GIFT.</p> <p>A clause in a will is to be construed as constituting a gift, and not a residuary clause, when it is designed to effectuate previous gifts, and not to bestow what was previously intended for another.</p> <p>2. Same—Valid gift to trustees.</p> <p>A bequest to the executor, with an expression of the hope that they will carry out the testator’s purpose, is in effect an absolute gift not for any particular purpose agreed upon or preconceived, but for objects such as the testator would have favored. There is but a wish, desire or hope expressed, and such a disposition is valid. Distinguishing Matter of the Will of O’Hara, 95 N. Y., 403.</p> <p>3. Same—Intention of testator.</p> <p>When from the will, taken as a whole, the intention of the testator appears clear but its plain and definite purposes are endangered by inapt • or inaccurate modes of expression, it is the duty of the court to subordinate the language to the intention. It may reject words and limitations, supply and transpose them to get at the correct meaning. The rule of the court is to carry out the intention of the testator, where it may be done without distinct violation of settled doctrines, and not to permit intestacy in any case where the will in effect and by just interpretation disposes of the whole estate.</p>

<p>1. Surrogate’s court—Authority op surrogate to control the assets BELONGING TO THE ESTATE.</p> <p>The surrogate’s court has the authority to control the assets of the estate, but it cannot do so to the prejudice of the interests of the persons entitled finally to participate in the distribution of the property. Nor should it, as a matter of discretion, exercise any control over the fund which, by any possibility, might result in injury or loss to the persons entitled to be benefitted under the will of the testator.</p> <p>3. Same—Authority op surrogate to direct the repayment op money— Code Civ. Pro., ¿5 2481, sued. 6.</p> <p>The surrogate, having vacated an order under the terms of which money belonging to the estate has been paid to certain of the beneficiaries at his or her instance, may require the repayment of the same by the persons who have received it. This authority is conferred upon the surrogate by subd. 6, section 2481, Code Civ. Pro.</p>

<p>Appeal from judgment entered after trial without a jury.</p>

<p>1. Bills and notes—When transferred before maturity.</p> <p>The payee of a certain note, for whose accommodation it was made, induced the plaintiffs to take up said note. The plaintiffs intrusted him with the mere clerical work of going to the bank, paying the money, receiving the note and returning it to them. This was done before protest and before the usual time for protesting commercial paper on the last day. Held, that the transfer was made before maturity. Lancey v. Clark, 64 N. Y., 209, distinguished.</p> <p>2. Same—When one is holder for value.</p> <p>Where a promissory note was made for the accommodation of the payee, but without restriction as to its use, an endorsee taking it as collateral security l'or an antecedent debt of the indorser, without other consideration, but in good faith and before dishonor, occupies the position of a holder for value, and is protected as such.</p>

<p>Award—When impeached or opened.</p> <p>A liberal interpretation is given to uphold an award, when it is not attacked for corruption or misconduct of the arbitrators. It cannot be impeached, except for corruption, partiality or gross misbehavior. A mistake upon a doubtful point will not always open an award. Fudiekar v. Guardian Mutual Life Insurance Company, 62 N. Y., 400, distinguished.</p>

<p>1. Witness—Credibility.</p> <p>When a party is successfully impeached as to any part of his testimony which is material, hy several witnesses, very little dependence can he placed upon any part of the statement made by him, and it, if contradicted, should be rejected.</p> <p>2. Costs—Liability—Beneficial interest—Attorneys.</p> <p>A beneficial interest in a cause of action does not render an attorney liable for costs, where such beneficial interest consists of a right to a portion of the sum or property recovered as compensation for his services in the action.</p>

<p>1. Mortgage—Foreclosure of—Order allowing intervention—Scope OF.</p> <p>This action was brought to foreclose a mortgage. After judgment had' been taken by default against the defendants herein, the present appellants being the owners of a judgment against the corporation, recovered after the filing of the notice of lis pendens, were allowed to come in and contest the validity of the mortgage. Held, that the order permitting the intervention of the appellants authorized them only to contest the validity of the mortgage, and that they could not insist upon any facts tending merely to show a suspension of the plaintiff’s remedy.</p> <p>3. Same—Exemption from costs.</p> <p>Held, that there being circumstances sufficient to arouse the appellant’s suspicion and to warrant their intervention, they should not be held exempt from the payment of costs or the disbursements of the plaintiff.</p>

<p>1. Possession—What constitutes constructive.</p> <p>These plaintiffs accepted a consignment and invoice of go ds, and directed them to be entered upon their books as goods to arrive. Held, that from that time the carrier had the custody of and transported the goods for their benefit, and that that gave them constructive possession of the property.</p> <p>2. Conversion—Title in third party forms no defense</p> <p>Held, that an action for the conversion of the property could not be defeated by proof that the title thereto was in a person other than the plaintiffs, when that was not connected with the claim of title under which the taking of the property was attempted to be justified. This is a defense only in actions for wrongful detention.</p> <p>3. Evidence—Of right to possession</p> <p>Held, that correspondence concerning the seizure was pertinent and proper evidence affecting the right of the plaintiff to recover the goods.</p> <p>4. Same—Of title</p> <p>Held, that the bill of lading was properly received, as was also testimony showing that directions were given by the plaintiffs to enter the goods on their books as property to arrive.</p> <p>5. Same—History of case</p> <p>Held, that letters succeeeding the seizure were properly received as forming a part of the history of the case.</p>

<p>Appeal from order changing place of trial from this county to Oneida county.</p>

<p>Appeal from the special term.</p>

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

Rogers Noble, a witness in contempt, and from an order dismissing motion made to set aside the order adjudging the witness in contempt.

<p>Béargument of appeal from judgment declaring assignment void.</p>

<p>Appeal from judgment recovered on the dismissal of the complaint at the close of plaintiff’s case at the circuit.</p>

<p>1. Supplementary proceedings—Receiver when appointed—Code Civ. Pro., §2464.</p> <p>The books of a certain company showed that certain shares of stock stood in the name of the judgment debtor He denied that he owned the stock, and stated that he had previously sold and disposed of it. Held, that the judgment creditor was not concluded by this statement, but could have a receiver appointed in proceedings supplementary to execution, who would be empowered to contest the fact as to the debtor having parted with his interest in said shares. That the appointment of such receiver in no way prejudiced the company.</p> <p>2. Practice—Ex parte orders—How appealed from:—Code Civ. Pro., §§ 1301, 1353</p> <p>An ex parte order cannot be appealed from, where no application to the special term or the judge making the order to vacate it has been made. Until that is done, there is nothing to review under Code Civil Procedure, sections 1301 and 1353.</p>

<p>Appeal from a judgment entered upon the verdict of a jury.</p>

<p>Appeal from order striking out an item of disbursements contained in the bill of costs as taxed by the clerk.</p>

Appeal by the defendants from an interlocutory decree establishing an equitable lien in favor of the plaintiff upon the proceeds of a certain judgment in the hands of the defendants as attorneys for one Alexander Low.

<p>Appeal from order striking out portions of the defendant’s answer as sham, frivolous, irrelevant and immaterial.</p>

<p>Appeal from a judgment entered upon a verdict directed in favor of defendant.</p> <p>Prior to the year 1885 a limited partnership under the firm name of George F. Wilson & Co. was carrying on the business of dealing in buttons, laces, etc., at No. 52 Lispenard street in the city of New York, and at the same time the plaintiffs were engaged in the business of manufacturing combs at West Newbury, Mass., under the firm name of S. C. Noyes & Co. In December, 1884, correspondence between the plaintiffs and the defendant Wilson was opened, and on the twenty-second of that month the defendant Wilson wrote to the plaintiffs acknowledging a letter of theirs of the twentieth, and asking that they should send him on consignment certain merchandise. On the 27th of December, 1884, this letter was acknowledged by the plaintiffs by a letter in which they say “we have your order for combs, which we did not expect to consign. We are willing to sell combs at our lowest prices,” etc. On the twenty-eighth of December the defendant sent a small order, with a request that the bill should be dated on the first of April following. This order was filled by the plaintiffs, and subsequent orders down to the beginning of March. On April 16, 1885, the defendant Wilson made an assignment for the benefit of his creditors to the defendant Chittenden, and on the eighteenth of April the plaintiffs brought this action in replevin, alleging the wrongful taking of the goods by Wilson, and the sheriff took the property under the writ. Upon the trial cf the case the plaintiff attempted to prove that the defendant Wilson had made representations to persons other than the plaintiffs in regard to his financial condition in January, 1885, which representations were false. This evidence was excluded, and to such ruling an exception was taken.</p> <p>The court directed a verdict in favor of the defendant, and from the judgment entered upon such verdict this appeal is taken.</p>

<p>Appeal from order of special term, denying motion on the part of the plaintiff for leave to file and serve supplemental complaint.</p>

<p>1. Contracts—Bonds of indemnity—Counsel fees part of the damages.</p> <p>Where, in a bond of indemnity, the obligor contracts to pay the damages and costs which the obligee may suffer on the breach of the condition, the obligee may recover from the obligor as part of his damages the counsel fees which he was compelled to pay in defending an action brought against him, the bringing of which action constituted the breach of the condition of the bond.</p> <p>3. Same—Cannot be set aside for fraud while profits are retained.</p> <p>A person cannot set aside a contract on the ground of fraud and repudiate its obligations while he retains the benefits derived under it.</p>

This is an appeal by William Whiting, the assignee of James D. Whitmore & Co., from an order made at special term denying a motion to vacate an attachment granted before the assignment. The assignor was not a party to the action, but it appears that on the 8th of January, 1886, the defendants obtained an order upon affidavits requiring the plaintiff to show cause why the attachment should not be vacated. Upon the hearing of the application Messrs.

<p>1. Stocks and bonds—Re-hypothecation—Right of possession.</p> <p>By the re-hypothecation of securities, special relations are established, which are entirely distinct from those created by the hypothecation of the same property. The party re-hypothecating the securities has the right of possession, of which he cannot lawfully be deprived by the party with whom they are re-hypothecated, even though the person who originally hypothecated them pay the loan for which they were re-hypothecated.</p> <p>3. Trover—Unlawful delivery op re-hypothecated securities— Measure of damages.</p> <p>In an action brought by the re-hypothecating party after the liquidation of the first loan, for the conversion of the property pledged, caused by its delivery by the party with whom it was" re-hpothecated, to the person who originally hypothecated it, on the payment of the second loan, if the property was not worth more than the loan for which it was re-hypothecated, the conversion would be damnum absque injuria, while, if it was worth more, the damages recoverable would be the difference between its value and the sum paid. .</p>

<p>Railroads—Proceedings to condemn property—Who have right to BE HEARD—AMENDMENT OF PETITION—HOW MADE.</p> <p>Under a petition to ascertain what compensation is to be paid; all parties having any interest in the street through which the road is to pass, have a right to he heard. An application to amend the petition should he made at the special not the general term.</p>

<p>Costs—When allowed to bespondent fob papebs pbinted on appeal.</p> <p>Where the appellant has omitted to print some of the papers referred to in the order from which the appeal is taken, the respondent has the right to tax in his bill of costs such disbursements as were rendered necessary in printing the omitted papers, but he will be restricted in printing to those only to which such reference was made.</p>

<p>1. Account stated — Action on-— Evidence showing fraud is admissible.</p> <p>The execution of a written admission of liability, while strong evidence of the fact that an account has been rendered and balanced between the parties, and that the ones executing the admission have assented to the balance, does not preclude them from showing that they signed the paper ' in consequence of fraudulent representations.</p> <p>2. Same—Fraud is a question for the jury.</p> <p>In an action brought upon such an instrument, the question of false reprentations is one for decision by the jury.</p> <p>3. Same—What elements necessary to constitute.</p> <p>In order to constitute an account stated, there must not only be an examination of the claims involved in the account, but an agreement as to their allowance.</p>

<p>1. Trespass—Question as to title to property one of pact for the jury—Presumption op ownership.</p> <p>The jury are to determine from the evidence whether one purchasing property is the real owner, or whether he simply bought it for others. The presumption is that one who bought and paid for property is the owner.</p> <p>3. Evidence—Right op'jury to ascertain the real meaning op language USED BY A FOREIGNER.</p> <p>In case of the testimony of a foreigner, unaccustomed to the use of the English language, the jury have a right to look beyond the literal words employed and ascertain the real .meaning of his testimony.</p>

<p>1. Wills—Construction of—Intention of testator.</p> <p>In the construction of a will, the intention of the testator is to govern, and it must be gathered from the whole instrument and from the instrument alone.</p> <p>2. Same—Effect of codicils.</p> <p>Codicils are additions, to be read as part and parcel of the original will, for the publication of the codicil is a republication of the will itself, as modified by the codicil.</p> <p>8. Same—Provisions in lieu of dower—Effect of election.</p> <p>Where in a will there are devises or bequests to the wife of the testator, in lieu of dower, by her election to take her dower by operation of law, she deprives herself of the benefits which she might have derived under the will.</p>

<p>Appeal from judgments entered on report of referee before whom the two cases were tried together.</p>

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

<p>Appeal from order made in this action referring all the issues therein to a referee to hear and determine same.</p>

<p>Upon the trial of this action a verdict was directed for the defendants, and the plaintiffs’ exceptions were ordered to be heard in the first instance at the general term.</p> <p>The plaintiffs now move that the verdict be set aside and a new trial ordered, and the defendants move that the exceptions be overruled and judgment directed upon the verdict.</p>

M., and then and there submit to a further examination in these proceedings, and that on or before the time above fixed for such examination, the said defendant pay to the said John M. Roe his referee’s fees, heretofore incurred, amounting to the sum of $12, or to the plaintiff’s attorney for said John M. Roe; and that upon the payment of said fees and the submission to such examination, the said proceedings for the alleged contempt be discharged.

On the 5th of July, 1866, the plaintiff owned certain county bonds, but the interest coupons attached thereto belonged to one, Dewarren Northrup.

<p>Appeal from a judgment of nonsuit granted in the Oneida circuit.</p> <p>Plaintiff alleges that he is the original and first discoverer and inventor of a certain valuable improvement or device in metal lasts, designed to be used in the manufacturing of hoots and shoes, and was the sole owner of said device or invention That said invention was complete and perfected at the time of the sale, and that on the 15th of January, 11884, this plaintiff, in consideration of the sum of $500, to be paid him by defendant therefor, and which said sum of $500 defendant then and there promised and agreed to pay to plaintiff therefor, duly sold, assigned and set over unto said defendant the said invention or device, -and all his Tight, title and interest therein, and the right to use the same in the manufacture of boots and shoes. That the defendant then and there took possession and control thereof, and accepted and appropriated and used the same, and ■without the knowledge or consent of plaintiff, upon his own application and upon the specifications sworn to by himself, procured a patent of the United States to be issued upon said invention to defendant in his own name as patentee.</p> <p>Defendant denies all the allegations of the complaint.</p>

<p>Appeal from a judgment of the county court of the county of Chenango, entered on a verdict and from an order denying a motion for a new trial made on the minutes.</p>

A. Knapp, Esq., referee, entered in Oneida county. Action to recover for services as treasurer of defendant. Plaintiff and his banking partner were stockholders in defendant, and the partner and plaintiff’s father, as well as himself, were stockholders at the time of the organization of defendant.

<p>1. Plank Road—Statute—Interpretation op language—Amendment —Laws 1847, chap. 210, § 35—Impliedly repealed by Laws 1853, chap. 245, § 1.</p> <p>Laws 1853, chapter 245, section 1, provides that “ instead of the toil authorized to be demanded and received on plank roads by section 35 of chapter 210 of the Laws of 1847, the following rates of loll may hereafter be demanded and received.” Held, that the terms “instead of,” meant in the place or room of; that it was plainly intended that section 1 should supersede Laws 1847, chapter 210, section 35, and that it was repealed by implication.</p> <p>2. Same—Laws 1847, chap 210, must be head as though expressly AMENDED BY LAWS 1853, CHAP 245, § 1.</p> <p>Held, that Laws 1847, chapter 210, must be read as though expressly amended by this act; and that all subsequent acts amendatory of or supplementary to Laws 1847, chapter 210, must be regarded as referring to it so amended.</p> <p>3. Same—Laws 1876, chap. 435, relate to the same subject-matter.</p> <p>Held, that these acts and Laws 1876, chapter 435, relate to the same subject-matter and must be read as though forming but a single act, and that it was applicable to a plank road.</p>

<p>1. Negligence—When a question for the jury.</p> <p>In an action to recover damages for injuries resulting from plaintiff’s being pushed overboard from one of defendant’s steamboats, there was evidence tending to show that the gangway gate had not been placed within its sockets at the time of the accident; that a person could not, without difficulty, lift the gate out of its place: that it could not be removed by the pressure of the crowd if it had once been put in its proper place, and that the gate was taken from the water unbroken. Held, that this evidence made it a question for the jury to decide whether it had been placed in position or not.</p> <p>2. Same— Starting boat without gangway gate in position.</p> <p>If the defendant’s steamboat started without the “gangway gate” being set, the defendant omitted to provide in time against one of the dangers to be guarded against by the use of such a gate, and was guilty of negligence where an accident happened by reason of such omission.</p> <p>3. Same—Contributory negligence.</p> <p>The plaintiff, who had just gone on board defendant’s steamboat, had taken his place inside the bulwarks, yet outside of the partition between the gangway and the main part of the boat. He "was pushed overboard by the rush made on the shout that there was some one overboard. There was nothing to show that his position was a dangerous one for him to occupy at the time the boat was starting. Held, he was not guilty of contributory negligence as a matter of law.</p> <p>4. Same—Duty op common carriers.</p> <p>To discharge its obligation as common carrier it was the duty of defendant, and it was bound to use the utmost care, which is consistent with the nature and extent of the business it is engaged in, the providing of safe and suitable means of transportation, as well as in the management of the same, and in such reasonable arrangements as a prudent man would make to guard against all dangers, from whatever source arising, which may naturally, and according to the usual course of things, be expected to occur.</p>

The complaint is for money had and received by the defendant of and from the plaintiff, and for notes, accounts, etc., transferred by plaintiff to defendant, and contains thirty six separate causes of action.

Plaintiff seeks to recover from defendant $728 for money had and received, and for rent of the farm described in the complaint. The defendant sets up payment, and an equitable defense arising out of circumstances connecting the defendant with the bond and mortgage and the guarranty thereof by defendant, the foreclosure of the mortgage and judgment for deficiency against the defendant, and the payment of such judgment of deficiency before the commencement of this action.

September 4, 1872, Alanson Bates and Genett Archer, by their joint and several promissory note, agreed to pay, one year after date, Daniel Lee or bearer $1,000, with interest. The interest was paid to Daniel Lee annually up to and including September 4, 1877. In January, 1878, Lee died, leaving a will, in which his daughter Diana L. Mattison was nominated as executrix.

<p>Appeal from a judgment of a county court entered on a verdict, and from an order denying a motion for a new trial, made on the minutes.</p>

<p>Appeal by defendants from a judgment in Oneida upon a circuit verdict and from an order on minutes.</p>

<p>Boundaries—When fixed by adverse possession and acquiescence.</p> <p>Where there has been a practical location of a line between lots of land. which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations, or the erroneous line has been agreed upon between the parties claiming the land on both sides thereof, or tlie party whose right is to be thus barred has silently looked on and seen the other party doing acts, or subjecting himself to expenses in relation to the land on the opposite side of tlie line, which he would not have done if the line had not been so located, the party in occupation up to the erroneous line may defend an action to recover the land, though the line is shown to have been erroneously located. Following Swettenham v. Leary, 18 Hun 287.</p>

<p>1. Practice—Parties—Who necessary—Will—Construction.</p> <p>Where real property was left by testator to a cerlaiu person “ to be by her owned and enjoyed the same as if I (the testator) had never owned it during her life-time; after her death whatever may be left is to be divided among my eight children in eight equal parts ” Held, that said eight children must be made parties to an action brought to decide whether the said legatee had a right to dispose of the real property or only a life estate therein.</p> <p>2. Same—Submission op controversy — When improper—Code Civ. Pro., § 1279—Minors.</p> <p>If the heirs at law were all of full age and willing to unite in a submission, a proper submission of the controversy might be executed, under Code Civil Procedure, section 1297. If any of them are minors, no submission could be made</p>

Action for alleged negligence. Verdict for the plaintiff for $1,800 at the trial at the' circuit. Motion for a nefv trial on case and exceptions heard at special term and denied. Appeal from judgment and from order. On the evening of the 10th of October, 1884, the plaintiff was traveling on Fulton street, in the village of Waverly, on foot, passing northerly, and approached the crossing of the defendant’s tracks.

<p>1. Adverse Possession—What proof necessary.</p> <p>To support the defense of adverse possession, or the right to recover in reliance upon it for twenty years, it is only needful that the party seeking to make out an adverse possession for twenty years should show that it was under claim of title. It need not be under a specific title. Having shown those facts, the Statute of Limitations enables them to assert and maintain such title and ownership.</p> <p>2. Witness—Credibility of</p> <p>A judge is not bound to believe a thing merely because the witness swears to it, but he should test the evidence as other men of discernment would test it, believing what he is convinced is true, and disregarding what he is convinced is false. Following Fuller v. Fuller, 4 Cent. Rep., 1027 (N. J.).</p>

<p>Contracts—Oral contracts affecting estates in the future—How PROVED</p> <p>Alleged oral dispositions of estates to take effect in the future, or after death, will not be found or supported, unless established by abundant evidence of the most satisfactory and convincing character,</p>

<p>1. Wills—Contest of probate—Allowance for stenographer’s minutes—Code Civ Pro., § 2258, sued. 3; £§ 2541, 2542, 2543.</p> <p>The unsuccessful petitioner for the revocation of probate of a will applied for allowance out of the assets of the estate for his expenses for stenographer’s minutes. It is provided by Codé Civ. Pro., § 2558, subd. 3, that in probate controversies the surrogate may order a copy of the stenographer’s minutes to be furnished to the contestant’s counsel and charge the expenses thereof to the estate if he shall be satisfied that the contest is made in good faith. Held, that in consideration of antecedent opinions expressed, and of this provision, allowance should be made to the petitioner out of the assets of the estate for any reasonable and proper expenses incurred by him in obtaining a copy of such “minutes” as are referred to in Code Civ. Pro., §§ 2541, 2542, 2543.</p> <p>2. Same—Relate to minutes oe testimony taken on tbial.</p> <p>Held, that these sections related exclusively to minutes of testimony taken in the course of the actual trial of a proceeding in the surrogate’s conrt.</p> <p>3. Same—Does not include deposition not used on tbial, etc.</p> <p>Held, that such allowance should not include expenses for a stenogra- " piher’s report of the examination of a person de bene esse where the deposition was not read in evidence at the trial nor returned in the manner provided for by Code Civil Procedure, § 880, nor the way paved for its introduction by proof of the death of the deponent, or her absence from the jurisdiction of the court or her inability to attend the trial by reason of her confinement in prison, or jail, or because of her insanity, sickness or other infirmity.</p>

<p>Contest arising on final settlement over the construction of certain cláuses in decedent’s will.</p>

<p>Will—Pbobate of—Failure of witnesses to recollect publication.</p> <p>A will should not be refused probate because the witnesses fail to recollect its publication, when there is a full attestation clause and the other circumstances are confirmatory of a valid execution.</p>

<p>1. Merger—Where a lesser and greater estate become vested in THE SAME PERSON, THE LESSER WILL MERGE IN THE GREATER.</p> <p>The testator, for several years preceding liis death, had leased a farm to his son. These leases were given from year to year, each terminating on the first of March The testator died during the month of March. It was insisted by the parties contesting the executor's account, that inasmuch as the tenant was then occupying the farm in pursuance of the lease he should pay the rent for that year, notwithstanding the premises were devised to him in fee. Held, that where a lesser and greater estate become vested in the same person, there is a merger of the lesser in the-greater.</p> <p>2. Executor—Assets—Rents not vet accrued at testator’s death will. NOT PASS AS ASSETS TO THE EXECUTOR—3 R. S., TITLE 3, CHAP. 6, ART. 1, §6, subd. 7.</p> <p>Held, that the rents not having accrued at the time of the testator’s decease, they did not pass as assets to the executor as part of the personal estate of the decedent</p> <p>4. Contract—For compensation for services—When not implied.</p> <p>The daughter of the testator continued to reside with him after attaining her majority as a member of his family without any agreement that she was to receive compensation for her services. Held, that no such agreement would be implied</p>

<p>1. Surrogate's Court—Power op Surrogate to modify or correct decrees and orders—Code Civ. Pro., § 3481, sued 6</p> <p>The surrogate has authority, under subd. 6 of $ 3481, Code of Civ Pro., to open, vacate, modify or set aside a decree or order of his court But the powers thus conferred must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.</p> <p>3. Same—Ignorance of the law not sufficient.</p> <p>Where an application was made in an accounting to correct the compensation allowed the executors of testator's estate on previous accountings, because it was allowed upon an erroneous theory of law. Held, not a sufficient reason.</p>

<p>1. Surrogate—Authority to direct payment by temporary administrator—Code Civ Pro., § 2672</p> <p>The surrogate has authority to direct a temporary administrator to defray the expenses of a controversy over probate only to the extent of the stenographer’s or referee's fees on the contest of a will or administration.</p> <p>2 Same—Practice—Costs to whom allowed—Code Civ. Pro., S§ 2561. 2562 ■</p> <p>Costs if allowed, must be allowed not to counsel, but to parties in accordance with the provisions of Code Civ Pro , § 2561 The surrogate has no authority to grant a per diem allowance for time spent in preparation except under the circumstances indicated in Code Civ. Pro., § 2562.</p> <p>8. Attorneys—When order of substitution necessary</p> <p>The fact that an attorney has acted for a temporary admistrator in pro ceedings connected with the estate, does not preclude such a party from availing himself in other proceedings of the services of other attorneys. In such case no order of substitution is necessary,</p>

<p>1. Wills—Validity of—Testamentary capacity.</p> <p>The fairness, propriety or justice of the dispositions made by a will can not be used as a test of its validity. Perverse opinions and unreasonable prejudices must not be confounded with mental alienation. These qualities of mind may exist even in a high degree, and yet so far as regards the view which the law takes of the case, the subject may be sane and competent to perform a legal act.</p> <p>2. Same—Undue influence—What constitutes.</p> <p>For the purpose of establishing the fact that undue influence has been exerted over a testator, it is not sufficient to show that the will is the result of affection or gratitude, or the persuasion which may legitimately be used, but the influence must be such as to overpower and subvert the will of the testator, thus producing a disposition of property which he would not have made if left freely to act his own pleasure.</p> <p>3. Same—Burden of proof.</p> <p>The burden of establishing that such unlawful influence has been exercised, rests upon the one who alleges it.</p>

<p>Executors and administrators—Removal—Accounting.</p> <p>Where, upon an accounting before a surrogate, an executor was directed to invest and keep invested certain money belonging to the estate “ according to the trusts and provisions contained ' in his testator’s last will and testament, and said executor failed to make such investments: Meld, that he continued to hold said money as executor, and must account for it as such,</p>

<p>1. Surrogate’s court—Appeal—Security for costs must be filed— Code Civ. Pro , § 2577.</p> <p>To render effectual an appeal from a decree of a surrogate directing an executor to pay or deposit money or to deliver property, an undertaking for costs of at least $250 must be given as provided by Code Civ. Pro., § 2577.</p> <p>3. Same—Revocation of letters testamentary—Appeal.</p> <p>To render effectual an appeal from a decree of a surrogate revoking letters testamentary and removing an executor from his office as trustee, an undertaking must be filed. Following, Fernbacher v. Fernbacher, 4 Dem., 246.</p>

<p>Will—When an instrument offered for probate is not entitled to PROBATE</p> <p>Upon the presentation for probate of an instrument purporting to be the last will and testament of. a decedent Held, That assuming that the decedent was not altogether incapable of making a will, yet the proof not being satisfactory that her free and intelligent testamentary purpose found expression in the instrument offered, it was not entitled to probate</p>

<p>Evidence—Probate of will—When admission of legatee or devisee NOT ADMISSIBLE.</p> <p>Declarations of one legatee or devisee are not admissible to affect the validity of a will or defeat its probate, when there is any other beneficiary who may. be injuriously afiected by such declarations and who is not jointly interested or in conspiracy with the person making them.</p>

<p>1. Excise laws—Laws 1857, chap. 628, § 13—Sale of liquors without LICENSE UNAUTHORIZED.</p> <p>It is provided by Laws 1857, chapter 628, section 13, that whoever shall sell any strong spirituous liquors or wines in quantities less than five gal-Ions at a time, without having a license therefor, granted as therein provided, shall forfeit fifty dollars for each offense. A license to sell liquors in quantities less than five gallons having been granted, by the terms of which the privilege to make such sales upon Sunday was expressly with held. Held, that without a license it was not permitted to any one to sell liquors,</p> <p>3. Same—License—Sale op liquors on Sunday unauthorized.</p> <p>Held, that the right to sell liquors upon Sunday being especially excepted from the powers granted, sales made on that day were unauthorized.</p> <p>3. Same—Habeas corpus—Dismissal op writ.</p> <p>Sales of liquor having been made upon a Sunday, and the party making such sales having been arrested for a breach of the excise laws: Held, that upon proof of such facts a writ of habeas corpas to inquire into the cause of such arrest should be dismissed.</p>

<p>Motion to require plaintiff’s attorney to receive answer as regularly served and for other relief.</p>

The defendant, as constable, levied upon the property by virtue of a warrant of attachment placed in his hands in an action in favor of James McKechine against one Thorp.

<p>1. Estoppel—When mortgagee is estopped from asserting his mortgage.</p> <p>The defendant Hunt having declined to accept the deed to certain premises subject to the plaintiff’s mortgage, and being afterwards induced to do so on the production of a discharge of said mortgage made by the plaintiff. Held, that the latter was estopped from afterwards asserting his mortgage to the prejudice of Hunt, or those persons holding under him.</p> <p>2. Same—Evidence—What competent.</p> <p>It was competent for the defendant to prove the request of his grantor, and the arrangement under which he consented to take a conveyance, and the circumstances of his refusal to accept the deed as it was drawn, and those under which he did accept it with a view to the question of estoppel arising out of the production of the instrument made by the ' plaintiff.</p> <p>3. Pleading—Denial on information and belief—Code Civ. Pro., §§ 600 and 522.</p> <p>The denials going to the existing validity of the mortgage as security were made upon the information and belief of the defendant. Held, that this method was sufficient to present an issue within the meaning of Code Civ. Pro., §§ 500 and 522.</p>

<p>1. Divorce—Action for—Trial by jury of the question of adultery —Is A MATTER OF RIGHT—Laws 1787, CHAP. 69—2 R. L., 197—2 R. S., 145, § 40—Constitution 1846, art. 1, § 2.</p> <p>The power of granting divorces on account of adultery was first transferred from the legislature to the court of chancery by Laws 1787, chap. 69, and there was a subsequent enactment on the subject, 2 R. L., 197, which was afterwards embodied in 2 R. S . 145, § 40. By these statutes the right to trial by jury of the question of adultery was given in such cases and existed at the time of the adoption of the constitution of 1846 By art. 1, § 2, of said constitution it is provided that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever; hut a jury trial may be waived in all civil cases in the manner prescribed by law. Held, that trial by jury of the question of adultery was, in actions for divorce, a matter of right.</p> <p>2. Same—Settling of issues under Code Civ. Pro., § 070—Not a matter OF DISCRETION.</p> <p>By Code Civil Pro , § 970, the party may, upon motion, apply to the court for an order directing the questions of fact arising upon those issues to be distinctly and plainly stated for trial by jury, and upon the hearing of the application the court must cause the issues to be distinctly and precisely settled. Held, that this is not a matter of discretion with the courts.</p> <p>3. Same—Direction imperative on court—Code Civ. Pro., % 1757.</p> <p>Held, that the right to trial by jury in such cases took with it the duty of the court to reader such right available according to the course and practice prescribed, and that the provisions of the statute were imperative that the court, by order, direct the trial by jury and cause the issues to he framed for that purpose.</p> <p>4 Same—Right to make application cannot be controlled by rule of practice—Rule 39 of general rule of practice not applicable.</p> <p>Held, that the right to make the application, and the imperative requirement that it be granted, wore not the subject of qualification or limitation by a rule of practice, so as to reduce it to a matter of discretion of the court if not made within ten days after issue, and that rule 31, of the general rules of practice, did not apply to this class of cases.</p> <p>5. Trial by jury—Manner of waiver- prescribed by Code Orv. Pro., §1009—Rule 31 of general rules of practice does not have effect to produce waiver.</p> <p>Held, that the law has provided, by Code Civ. Pro., § 1009, the manner-in which trial by jury might he waived, and that the rule could not have the effect to produce a waiver of the right if not exercised within the time limited.</p>

<p>1. Railroads — General railroad act—§ 38, surd. 6, provides, for POINTS AND MANNER OF CROSSING.</p> <p>The line or lines, grade or grades, points and manner of crossing and connections between railroads are determined under the General Railroad Act, section 38, subdivision 6.</p> <p>3. Same—Specific provisions control those more general.</p> <p>The subject of crossing existing railroad tracks being specifically provided for, and the proceedings by which the points of crossing are to be determined being pointed out by the statute, the general provisions in regard to the location of the route and the right of property owners to object to such location, are not applicable to the manner of crossing, and cannot deprive existing roads of any of the protection which the provisions in regard thereto afford them</p> <p>3. Same—§ 22 has no application to matters between railroads.</p> <p>The provisions of section 22 of said act have no application to such cases.</p>

<p>1. Criminal law—Larceny—Penal Code, § 528—What evidence necessary FOR CONVICTION.</p> <p>By Penal Code, § 528, a person who with intent to deprive or defraud the true owner of his property * * secretes, withholds or appropriates to his own use * any money or personal property * * or, having ia his possession, custody or control as a bailee, servant or agent * * any money or property * * appropriates the same-to his own use, is guilty of larceny, Held, that on a trial for the crime of larceny, it was incumbent on the prosecution to maize a case which precluded beyond a reasonable doubt the hypothesis of the defendant s innocence.</p> <p>3, Same—What is defense—Penal Code § 548.</p> <p>By Penal Code, § 548, it is provided that upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable.</p> <p>8. Same—Question wrongly submitted to jury.</p> <p>There being no proof as to part of the property that the defendant received it without the consent of the owner, and that part being of such value as to render the defendant guilty of the crime charged in the indictment if wrongfully appropriated Held, that the question of his guilt as to that part was wrongfully submitted to the jury, and it not appearing from the record that the verdict of conviction was not rendered on that ground, that the conviction could not be upheld</p> <p>4. Same—Allowance of immaterial question is erroneous.</p> <p>Held, that the allowance of a question which was immaterial and which tended to prejudice the juryagainst the defendant, was erroneous.</p> <p>5 Same—Impeaching testimony of witness—What necessary qualification.</p> <p>Held, that a witness not shown to be acquainted with the defendant’s general reputation for veracity, was not competent to impeach his testimony.</p>

<p>Appeal from judgment entered on verdict of Orleans circuit, and from order denying defendant’s motion on case and exceptions for a new trial. The action is brought to recover damages for personal injuries alleged to have been suffered by the plaintiff and occasioned by the negligence of the defendant And she recovered a verdict for $2,000.</p>

<p>Appeal from judgment entered on decision of Livingston special term.</p> <p>The action is brought to foreclose a trust deed in the nature of a mortgage, made by the defendant, The Erie and Genesee Valley Bailroad Company, to the plaintiffs and Le Grand Lockwood, as trustees, to secure the payment of the bonds of that company to the amount of $120,000. The mortgage covered all the property of the company, consisting of a railroad from Dansville to Mt. Morris, in the county of Livingston, and all lands and structures connected with it, and all its rights, privileges and franchises. The company was organized in 1868. The mortgage bears date June 20, 1871. And the complaint alleges that on or about that day the company made its negotiable bonds of the same date, amounting to $120,000, payable to the trustees or bearer July 1, 1886, and interest at the rate of seven per cent per annum, payable semiannually on the first days of January and July; that the bonds were for a valuable consideration delivered to persons who became the owners thereof; that default was made in the payment of the interest which became due July 1,1875, and semi-annually thereafter; that on the first day of September, 1871, the Erie and Genesee Valley Bailroad Company leased to Lauren C Woodruff all its property, rights, and privileges for the full unexpired term of its charter, and for the term of any renewals thereof, and that amongst other things Woodruff agreed to operate the railroad, pay the interest in the bonded debt of $120,000, and at maturity pay it or provide for its renewal, pay taxes, etc.; that on September 8, 1871, Woodruff leased the railroad property to the Erie Bailway Company, by agreement containing like provisions and undertaking on the part of the com - pany similar to that on his part in the lease to him; that the Erie Bailway Company took possession of and operated the road until in 1875, when a receiver appointed of its property went into possession, and operated it until after a judicial sale of the property of the latter company, and the organization of the New York, Lake Erie and Western Bailroad Company, when the latter company “took to itself the possession, occupation, control and operation ” of the railroad in question; that the receiver did not pay, nor has the N. Y., L. E. and W. B. B. Co. paid any rents to the lessors or to the plaintiff, but have refused to do so; that the trustee Lockwood died in 1873. And amongst the relief demanded is, that in case of deficiency, the Erie Railway Company, the N. Y., L. E. and W. R. R. Co. and Wood-ruff be adjudged to pay it.</p> <p>The N. Y. L. E. and W. R. R. Co. answers, and so do the E. and G. V. R. R. Co. and Woodruff.</p> <p>The latter demands judgment that the N. Y., L. E. and W. R. R. Co. and the Erie Railway Co. be required to perform the covenants of the lease before referred to.</p> <p>The trial court found and determined that as between the E. and G. Y. R. R. Co. and the N. Y., L. E. and W. R. R. Co., the latter was liable for the accrued interest on bonds, amounting at the time of the decision to $84,000, and for such interest as should thereafter accrue while it continues in the possession of the road;, that as between those two companies and Woodruff, it is primarily liable as principal debtor for the payment of the entire principal of the bonds maturing July 1, 1886, and directed judgment, which was entered, by which it was, amongst other things, adjudged that the N. Y., L. E. and W. R. R. Co. should be charged with any deficiency arising from the sale, with costs.</p> <p>The N. Y., L. E. and W. R. R. Co. appeals.</p>

<p>1. Negligence—Contributory—Streets and highways—Traveler can ASSUME THEM TO BE SAFE.</p> <p>A person traveling upon a highway is, as a general rule, justified in assuming that it is safe, and where he is injured in consequence of a defect therein, the fact that he had previous knowledge of the existence of the fact does not per se establisn negligence on his part.</p> <p>Z. Same—Care a traveler must take—Judges charge.</p> <p>The court was asked to charge that if plaintiS’s intestate knew of the existence of a certain unguarded area abutting on a public alley, or might, with reasonable and proper use of his faculties, know of the existence of it, he was bound to take knowledge thereof and to use proper care and diligence to avoid it. Held, not error to refuse That the request was too broad.</p> <p>:3 Nuisance—A pit need not be in street to be a nuisance—Street AND HIGHWAYS</p> <p>It is not necessary that the pit or obstruction should be in the street in order to be a public nuisance. That which menaced or put in jeopardy citizens who pass along the public way is a public nuisance. It is for the jury to decide whether it was a nuisance.</p> <p>4. Same—Action for damages—What notice must be shown.</p> <p>In order to maintain an action for damages resulting from a nuisance upon the defendant’s land, where siich nuisance was erected by a previous owner before conveyance to the defendant, it is necessary to show that before the commencement of the action he had notice or knowledge (actual or constructive) of the existence of the nuisance.</p> <p>•5. Same—What is constructive notice—Duty to abate.</p> <p>The defendants had been owners of the premises in question for nearly three years The nuisance was an open, visible, unguarded area abutting upon a public alley that must have been seen and known by them had they visited the end of the premises abutting upon said alley. Held, that they had constructive notice of its existence, and owed a duty to the public to have abated it</p>

The action is brought for personal injuries suffered by the plaintiff and alleged to have been occasioned by the defendant.

<p>1. Statute of limitations—When it commences to run—Action for MONEYS RECEIVED BY ATTORNEY</p> <p>In an action brought by the administratrix, a client, to recover moneys collected for the decedent by her attorney on various occasions during the period during which he was employed as such Held, the right of action arose and the statute of limitations began to run in respect to the sums collected when they were respectively received by the defendant</p> <p>2. Same—Application op payments</p> <p>Held, that the payments made by him on account of such collections not having been applied upon any particular items, were applicable, and must be deemed applied to the payment of those first received by him and in ex tinguishment of the several sums collected by him for the decedent in the order in which they came into the hands of the defendant.</p> <p>3. Same—Application op payments—Sums collected at intervals considered AS FORMING ONE SUM</p> <p>Held, also that for the purpose of the application of payments and its effect, the sums collected by the attorney for his client and remaining in is hands, might be considered as becoming one entire amount, and 'that ayments on account of it within six years prior to the commencement of he action, would have the effect to defeat the operation of the statute of limitaiions</p> <p>4. Evidence — What will not raise a presumption op payment by ATTORNEY</p> <p>Held, that the execution by the client of a satisfaction piece to a mortgage which had been placed in the hands of the attorney for collection of the moneys secured thereby, raised no presumption that she had received the sum collected by him</p>

<p>Evidence—Pabol when allowed to explain becobd of judgment.</p> <p>The judgment in another action was pleaded as a bar to the action herein. Held, that it was competent to show by parol evidence upon what issues the said judgment was rendered, as the record was silent on the subject.</p>

Appeal by the people from judgment of Ontario sessions, reversing the judgment of a court of special sessions convicting the defendant of an assault.

<p>1. Criminal law—Practice—Reversal only given on argument—Code Crim Pro., § 539.</p> <p>A judgment of conviction in a criminal action cannot be got rid of by the default of the district attorney, a reversal can only be given upon argument which satisfies the appellate court that the judgment should be reversed, even though the district attorney failed to appear in the case</p> <p>2. Same—Case—Must be settled by judge—Code Crim Pro , § 456 AND 459.</p> <p>The attorneys are not authorized to settle a case in a criminal action; the case and the bill containing the exceptions must be signed by the presiding judge and filed with the clerk. At the time appointed the judge must settle and sign the bill of exceptions.</p> <p>8. Same—Motion for new trial.</p> <p>Motion made in the appellate court for a new trial on the ground of newly-discovered evidence, must fail if the evidence taken on the trial is not before said court.</p> <p>4. Same—Evidence of declarations.</p> <p>The evidence of the declarations of persons is received with great caution - and must not be given undue weight. It is not entitled to the same weight as many other kinds of evidence.</p> <p>6. Same—Grand larceny— What sufficent proof of.</p> <p>The evidence on the part of the people was that an old German lady, seventy four years old, had received a pension of $1,800 from the government and deposited it in a' certain bank; that in returning from said bank she met the defendant upon the sidewalk near a certain private bank, and was congratulated by him upon getting her pension claim allowed, and he offered to borrow the money of her and pay her interest that she refused to loan it, saying she wished to use it, but said to him that she was indebted to him $100 upon a mortgage that he held upon her house and wanted to pay him that; that they went into said private bank together, and defendant wrote what she supposed to be a check for $100; that he gave her a paper which was in an envelope, which she supposed was the mortgage A few days thereafter she found the check given by her was for $1,500, and the paper a certificate of deposit in said private bank for that a-mount, and immediately she demanded the money from said private bank, which was not paid, ana accused the defendant of getting her money from her. Held, there was sufficient to sustain a conviction for grand larceny .-</p>

<p>1. Injunction— Continuance op a nuisance may be bestiíained by.</p> <p>The contimlance of tlie use of a sewer, the operation of which as such has been previously adjudged a nuisance, will be restrained by injunction.</p> <p>3, Same—Municipal corporation amenable to the same hules in regard THERETO AS AN INDIVIDUAL.</p> <p>The fact that the defendant is a municipal corporation, affords it no im rnunity from the rules applicable to an individual in a like situation, and it may be enjoined from creating or maintaining a nuisance productive of irreparable injury.</p>

<p>1. Evidence—Competency op statements as to condition op invalid.</p> <p>Upon the trial of-an action for damages for loss of his wife's services, through the negligence of the defendant, the husband was asked how long ' his wife needed the care and attendance of somebody IMd, that the question, so far as it was a statement of the condition of the invalid, was proper, and so far as it called for a conclusion as to her condition, was within the discretion of the court to allow.</p> <p>2. Same—Motion to strike out—Granting op is discretionary.</p> <p>The granting or refusal of a motion to strike out a question, already answered by a witness, is within the discretion of the court.</p> <p>3. Same — Statements by invalid as to physical condition — Competency op.</p> <p>The statement by the wife, made to her physician, that she is not as strong as she used to be, is competent within the rule allowing as original evidence the representation of a sick person as to the nature, symptoms and effects of the malady with which he or she may be suffering.</p> <p>4. Municipal corporation—Liability por injuries sustained through UNSAFE CONDITION OF STREETS</p> <p>The jury were charged that it was the duty of the city to keep its walks in a reasonably; safe condition. This instruction was immediately followed by the instruction that, in order to hold the city liable, it must be shown that it had notice of the defect in the street through the presence of which the injury was received, and further explained by the remark that the city were not insurers, and that the other elements referred to must exist in order to enable the plaintiff to recover. Held, that the charge was correct.</p>

Appeal from judgment of Cattaraugus county court entered upon a verdict of a jury and from order of that court denying motion for a new trial

<p>Appeal from order of special term granting the Manhattan Dispensary leave to change its name to the Manhattan Hospital.</p>

<p>Appeal from order denying motion to set aside service of summons</p>

<p>Discontinuance op action.</p>

<p>Appeal from order denying motion for security for costs.</p>

<p>Examination op books op a corporation.</p>

<p>Appeal by plaintiff from order of reference to assess damages upon injunction.</p>

<p>Seal—Recital of in attestation clause raises presumption of its existence—Form of may be rebutted.</p>

<p>Practice—Papers on appeal—What they should contain.</p>

<p>Mortgage—When not fraudulent as to creditors.</p>

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

<p>Appeal by defendant from judgment entered upon verdict directed at circuit.</p>

<p>Appeals from judgment entered on verdict of a jury in favor of plaintiff, and from order denying motion to set aside verdict, and for new trial upon the judges’ minutes, and from order denying motion for new trial on the ground of newly discovered evidence.</p>

<p>Assault—Breach oe contract—Damages.</p>

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

<p>Damages—When verdict not excessive.</p>

<p>Negligence—When employer guilty of.</p>

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

<p>Commissions—Amount due on a certain sale.</p>