Volume 73 — New York State Reporter

<p>1. Appeal—Record.</p> <p>A ruling based on evidence not in the record will not be reviewed on appeal.</p> <p>3. Justice’s court—Judgment—Entry.</p> <p>Under section 3893 of the Code, a single judgment should be entered for plaintiff for the actual amount recovered with costs to the time of offer, less defendant’s costs accruing after the offer.</p> <p>3. Same—Modification on appeal.</p> <p>Under section 3063 of the Code, the appellate court should, where a justice enters one judgment for plaintiff for damages and for costs accruing prior to the offer, and a separate one for defendants for costs accruing after such offer, enter a single judgment for plaintiff, less the costs accruing to defendant after his offer of judgment.</p> <p>4. Same—Costs.</p> <p>Under subdivision 5, section 3066 of the Code, modification of the form of a justice’s judgment should be without costs to either party, where the objection to the form was an open question and not urged on ai-gument.</p>

<p>1. New trial—Erroneous charge.</p> <p>A court may properly grant a motion for a new trial where it has given a clearly erroneous instruction.</p> <p>2. Same.</p> <p>The fact, that the plaintiff did not except to the instruction given by the court, will not prevent the court from rectifying a clear error by granting a new trial.</p> <p>3. Contracts—Consideration.</p> <p>The compromise of a doubtful claim is a good consideration for a prom- . ise to pay money; and, when an action is brought upon the promise, it is no answer to show that the first suit could not have been maintained, or that the claim was not a valid one.</p>

Isbell, deceased, by which decree it was adjudged that the American Baptist Missionary Union was not entitled to the legacy of $1,000, mentioned in the clause of the testatrix’s will set forth in the opinion

<p>1. Municipal corporations—Villases—Street Commissioners.</p> <p>The board of street commissioners has no authority to employ an attorney at the expense of the'village, and the payment of his services is not a legal charge and cannot be made a proper .item of the “current expenses."</p> <p>2. Same.</p> <p>- A warrant, issued by the board of street commissioners in payment of counsel fees, is illegal. .</p> <p>,3. Appeal—Mandamus.</p> <p>Under section 1294 of the Code, the receiver of taxes of a village, against whom a peremptory writ of mandamus has been awarded to compel the payment of a warrant, may appeal.</p>

<p>1. Corporation—Dissolution—Deceiver.</p> <p>Where, in an application for the voluntary dissolution of a corporation as insolvent, its directors file a schedule under § 3431 of the Code, from which it appears that the assets exceed the liabilities by a large sum, the appointment of a temporary receiver is unauthorized by § 3433 of the Code.</p> <p>2. Same—Schedules—Amendment.</p> <p>In such case, an amendment of such schedule four months afterward, and after the plant was in disuse, upon affidavits showing that the real and personal property and the choses in action in possession of the temporary receiver were not sufficient to pay the liabilities, is not authorized by § 3437 if the Code, as amended in 1894.</p>

Tin's action was brought in a justice’s court to recover a penalty of $100 imposed by the village of Cortland under a provision of •its charter against any person selling within its limits “intoxicating liquors, contrary to law.” The complaint, after setting forth the ordinance, the authority of the village to enact it, and the service of a copy thereof upon the defendant, further sets forth its cause of action in the following words : “ That on or about the 26th day of…

<p>1. Vendor and purchaser—Record title.</p> <p>Ill the absence of evidence, the good faith'of a purchaser of land by the record title is presumed, and the burden of showing notice rests upon the party who seeks to impeach the record purchaser’s good-faith.</p> <p>2. Same—Unrecorded instrument.</p> <p>The purchaser in good faith of land, at an execution sale under a judgment against the holder of the record title, without notice, who records his deed, acquires a good title as against those claiming under an unrecorded contract of sale executed by the judgment debtor, though by such contract he parted with all Ms rights in the' land prior to the time when the lien of the. judgment attached.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>Landlord and tenant—Repairs.</p> <p>In the absence of an agreement by the landlord to repair, he is not answerable to the tenant for damage resulting to the latter for a want of necessary repairs.</p>

<p>Appeal from a judgment in favor of defendant.</p>

<p>Appeal from a judgment in favor of plaintiff.’</p>

<p>• Justice of the peace—Jury trial.</p> <p>Under section 1372 of the Consolidation Act, as amended by chapter 378, of 1891, the justice may, in his discretion, where a judgment of the justice has been reversed and the case remanded, order a jury for the second trial.</p>

<p>Appeal from a decree admitting the will to probate.</p>

<p>Appeal from an order granting a new trial on motion for plaintiff.</p>

<p>1. Trusts—Beneficiary—Consent.</p> <p>While in some ca=es a power to dispose of the trust estate may be implied from the nature of the trust and the provisions of the trust agreement, yet, where it is provided that there should be no disposition of Ihe trust estate except with the written consent, of the beneficiary, no such power can be implied, and no transfer can be made, unless there is a compliance with the conditions prescribed in the trust agreement.</p> <p>2. Same—Purchaser.</p> <p>A party, who deals with a trustee in the purchase from him of trust securities, is bound to look into the trust agreement to ascertain the power of the trustee.</p> <p>3. Same.</p> <p>Where the power which is found in the trust agreement is limited by a. condition requiring the consent of the cestui que trust, the party is chargeable with notice of such limitation as a part of the power itself.</p> <p>4. Same—Purchase money.</p> <p>The purchaser of a mortgage from a trustee, unauthorised to sell, has no equity to hold and enforce it until the money which he paid the trustee for it is returned to him, unless the trust estate received and had the benefit of such money.</p>

<p>Appeal from an order, confirming the report of the commissioners of estimate and assessment,</p>

<p>Appeal from an order, awarding to a warrant of attachment in favor of plaintiff preference over one in favor of the appellants, both warrants being against defendant.</p>

<p>Certiorari to review the proceeding of the commissioners of the police department, of the city of New York, resulting in the dismissal of relator from the police force of the department of said city.</p>

<p>Appeal from a final order in summary proceedings in favor of defendants.</p>

<p>1. Pleading—Answer—Frivolous.</p> <p>An answer can be said to be frivolous, only when it is so clearly bad as to require no argument to show its character, and which would he said to be manifestly defective so as to be indicative of bad faith, upon a mere •</p> <p>inspection.</p> <p>3. Same.</p> <p>Unless it appeal’s, by inspection of the pleading, that it raises no issue upon any fact which the plaintiff must prove, it is not frivolous, however objectionable it may be in other respects.</p> <p>3.' Same.</p> <p>An answer in an action to foreclose a mortgage, which denies allegations of the complaint that there was a default and that the plaintiff had elected to declare the whole principal due, was held’not to be frivolous.</p> <p>i. Same—Denial.</p> <p>Where a failure to pay an installment of a mortgage which fell due previously is alleged, not merely as a failure to pay, but as one of the facts upon which the plaintiff bases his claim that a condition subsequent has not been performed and the whole debt has become due, the fact of nonpayment is put in issue by a denial in the answer.</p>

<p>1. Assignment of creditors—Preference.</p> <p>In order to reach and scale d.own alleged unlawful preference, created by transactions separate and apart from the assignment, but claimed, as matter of law and fact, to constitute a part thereof, it is necessary to prove an intent on the part of the assignors to execute a general assignment, and a knowledge of that intent on the part of the creditor at the time he receives his security which is the subject of attack.</p> <p>2. Same.</p> <p>If the transaction is capable of two inferences, one in favor of its integrity and the other to the contrary, the inference in favor of the position that no fraud upon the law was attempted must be the one that should prevail.</p> <p>3. Same.</p> <p>The fact that a creditor, when taking security, knows the debtor to be in a failing condition does not render his security a preference in case of an assignment by the debtor.</p> <p>4. Same.</p> <p>A party, who takes security from a debtor, knowing that he is about to assign, can only hold such security to an amount which will bring the , preference within one-third of the-assigned estate after the statutory deductions.</p> <p>6. Same.</p> <p>A creditor, preferred by security on a general assignment, becomes, after such security is exhausted, a general creditor as to the remainder due him, and may share as such in the remaining two-thirds of the assigned estate.</p>

<p>1. Assessor—Removal.</p> <p>Removal from office of a member of the board of assessors, on the charge that be is physically incapable of performing the duties of his position, is not warranted upon the fact that he is in feeble .health to some extent and slightly debilitated, where it is not shown that his physical incapacity in any way interferes with the performance of his duty.</p> <p>2. Same—Certiorari—Return.</p> <p>The recital, in the return of commissioners by a writ of certiorari in such case, that their findings were based, not only on the testimony, but on the appearance of the member when before them, cannot prevent a reversal of their action for insufficiency of evidence, when no description of his appearance when before them is given.</p> <p>8. Same—Evidence.</p> <p>In such a case, a witness cannot, instead of detailing facts, testify that he has concluded that the condition of the officer interfered with the discharge of his duties.</p>

<p>Appeal from, a judgment in favor of defendant</p> <p>The action was brought upon a written contract, bearing date October 2, 1884, which provided that a play entitled “ Bich and Poor,” written - by the plaintiff for the defendant, should be produced by the defendant, at as. early a date as reasonably convenient, in the United States, and in as proper a form as was consistent with the necessities of production in a first-class theater; that the defendant should pay the plaintiff $100 per week while the ' play was being played, until he should have paid the sum of $5,000; that the defendant should produce the play continuously, if there was a reasonable success attending its production, for the benefit of plaintiff and the success of the play, in consideration of "the plaintiff's making over to the defendant, his héirs and assigns, all right and title to said play; and that the plaintiff should receive the $5,000 in full for the play and all claims thereon. It was conceded that this contract was made, and that thereafter the play was produced December 22, 1884, at Fall Elver, Mass., and December 23, 1884, at Hew Bedford, Mass., and was never produced thereafter. The plaintiff alleged in his complaint that the defendant violated the contract, in that he did not produce the play in as proper form as was consistent with the necessities of production in a first-class theater, and that he did not produce the play continuously; that it' was produced without proper rehearsals having been had; that the defendant did not know his part, and was not in a proper condition to play the same, and that he changed the play in important ’parts, to its great detriment, cutting out parts of it, and substituting therefor material of his own composition, without the plaintiff's consent; that there were not sufficient performers in the cast to properly produce the play, and that there was no prompter present to aid its production; and that about January 1,1885, the defendant notified the plaintiff that he would not again produce the play, or carry out the contract. This action was brought to recover $5,000, as damages for the breach of the contract. The defendant denied the allegations of the complaint as to a violation of the contract, and alleged affirmatively that the play met with no success whatever, but proved an absolute failure, and the defendant discontinued the performance thereof, as he had a right to do under the terms of the contract. The trial was had before the court and jury. The plaintiff testified that about a week after the production of the play the defendant sent for him, and told him that he (the plaintiff) had done his work well, and the play was all right, but that he (the defendant) could not play his part, and that he would not try it again, and that he would try to sell the play. ■ Another witness (Armstrong) testified that he met the defendant shortly after the production of the play, and said to him, “ I hear that you have made a success of the plaintiff’s new play,"’ and the defendant replied, “ Yes; it is a good play, but it is not in pay way.” The defendant testified that he cut out parts of the play, and substituted his own material, and that he did not know his lines-perfectly when he produced the play. Another witness (Salsbury) testified that he was the editor and publisher of a newspaper at Fall River, Mass., when the play was produced there, and that be saw the play produced, having a seat in one of the four front rows of orchestra chairs; that he had been engaged in dramatic criticisms for nearly thirty years, and that during that time he had furnished such criticisms for the press; that he wrote a criticism of this play, after it was produced, and published the same in his newspaper in Fall River. He was allowed by the court to testify further that there was a roughness and want of finish in the initial performance of the play, and that the defendant forgot his lines several times, and needed considerable prompting, and that there was a fair audience present when the play was presented. He was then asked whether the company gave evidence of having properly rehearsed the play before its production. He was also asked how the play was received by the audience, and how the newspapers treated its production, and whether the criticism was favorable or otherwise, and to state the nature of the criticism. He was also asked to state whether the actors were called before the curtain, and how many times, and whether the play was received with applause, and how often. Objection was made on the part of the defendant to the witness’ answering these question; but no suggestion was made in any of the objections that the witness was not shown to be an expert with reference to dramatic representations or dramatic criticisms. The court sustained all these objections, and the plaintiff excepted. At the close of the evidence the defendant moved for a dismissal of the complaint on the ground that the $5,000 was only to be paid at a rate of $100 a week, on the condition that play was a success, and the plaintiff had failed to prove that the play wás a success. The court granted this motion, and the plaintiff excepted.</p>

<p>Evidence—Pleadings—Action on bond.</p> <p>In an action by a sheriff, on a deputy’s bond, for loss arising from failure qf the deputy to notify the sheriff that a check received by the deputy from a claimant of attached goods, pursuant to a stipulation between the attachment plaintiff and claimant to secure release of the goods, was, by the stipulation, given as absolute security for any judgment the attachment plaintiff might recover in his action and not merely in substitution for the attached goods, an answer,tin an action by the claimant against the sheriff, in which the plaintiff recovered on the check, was held not to be evidence that, prior to decision of the case of claimant against the sheriff," the sheriff had knowledge of the provision of the stipulation that the check was to be held as absolute security for my judgment of plaintiff in attachment.</p>

<p>1. Municipal cobfobations—Claim—Filins notice.</p> <p>Under chapter 572 of 1886, a notice of an intenlion to commence an action to recover damages for injuries must be in Writing.</p> <p>3. Pleading—Notice.</p> <p>The fact of the filing of such notice, being a condition precedent to the existence of a cause of action, must be set up in the complaint, or a cause of action is not alleged.</p>

<p>1. Trusts—Costs.</p> <p>Where a judgment, directing a sale and distribution of the proceeds of a farm bought partly with other than trust funds provides that “plaintiff do recover of defendants Ids costs in this action, and such costs are hereby charged on said premises, payable out of the proceeds of the sale,” the costs should be deducted out of the general proceeds of the sale and not exclu-' sively out of the part belonging to the trust estate under the will.</p> <p>2. Same —Commissions.</p> <p>In such case the trustee cannot be allowed, out of the trust estate, commissions on the whole amount of the proceeds of the sale, but only on such part thereof as belong to that estate.</p>

<p>Appeal from two orders allowing plaintiff to discontinue the action.</p>

<p>Dead body—Mutit.atiou.</p> <p>The right to (he possession of a dead body for the purpose of preserva- • lion and bu ial is a legal right, the violation of which by an unauthorized an 1 unlawful mutilation of the corpse before burial gives rise to an action for damages in favor of the surviving wife of the deceased.</p>

The complaint alleged that on or about the 25th day of April, 1890, the defendant employed the plaintiff; that said employment was to commence June 16, 1890, and was to continue one year, at the agreed compensation of $2,000 per year; that the plaintiff conned to act under isuch employment until January 1, 1891, at which time the defendant terminated the contract of employment, without fault or negligence on the part of the plaintiff, by discharging him from such employment;…

<p>1. Action—Consolidation.</p> <p>The supreme court has power, in a proper case, to consolidate with an action pending in it another which is brought in a district court of the city of New York, but the same conditions must exist that would authorize a consolidation of actions pending in the supreme court.</p> <p>2. Same.</p> <p>The essential condition of the exercise of this power is that the two actions must be against the same defendants, as well as on causes of action which may be joined.</p> <p>S. Same.</p> <p>Two actions cannot be consolidated as against the same defendants, • where one action is against several defendants and the other action is against such and other defendants.</p> <p>a</p> <p>4. Same—Stay.</p> <p>In such case, the proper practice is for the defendants to move to stay the trial of the district court action until the trial of that in the supreme court.</p>

<p>Appeal from an order of the surrogate, affirming an appraisement and determination of a transfer tax.</p>

<p>1. Contract—Breaph—Damages.</p> <p>A party cannot recover damages for the refusal of another to perform a contract where the first breach was committed by himself.</p> <p>2. Account stated—Recovery.</p> <p>Where one seeks to recover upon an account stated and fails, he cannot select one of the items going to make up such account, and recover upon it.</p> <p>3. Same.</p> <p>Such party is not obliged to rely solely upon such a plea, but may join in the same complaint a count for the original debt,' and, in such a condition of the pleadings, should he fail upen the account stated, he can prove, if able, some or all the original debt.</p> <p>4. Same.</p> <p>But where, though he pleads in both forms, he virtually abandons, upon the trial, the original indebtedness or the count for work, labor and services, and insists upon confining the issue to an account stated, he cannot recover for any separate item therein.</p>

<p>1. Divob.ce—Foreign.</p> <p>Where a.husband abandons his wife and acquires a residence in another state, a decree of divorce procured there without her knowledge is void, and is no defense to a prosecution for abandonment.</p> <p>2. Same—Abandonment.</p> <p>On the trial of a prosecution against a husband for abandonment of his family, it is error to refuse to admit testimony to show the financial condition of the wife.</p> <p>8. Same—Defense.</p> <p>On such trial, it is error to exclude testimony to disprove the abandonment, and tending to show that the plaintiff had refused to live with defendant, that he had offered her a home, that he had asked her to come and live with him and that she had declared she would not live with him at any place he might provide. ,</p>

The relator was appointed June 6, 1889, and continued to hold the position until June 3, 1895, when he was dismissed. He was an honorably discharged soldier who had served in the Union army during the war of the Rebellion. He was not appointed for a definite term, and his dismissal was not for cause shown' after hearing had.

<p>Appeal from a judgment entered in favor of plaintiff,</p>

<p>Appeal from a judgment in favor of the defendant</p>

<p>1 Estoppel—Pleading.</p> <p>Where, in the action at law for money had and received, the defendant admits that he has in his possession a specified sum for payment to plaintiff, he cannot thereafter defeat plaintiff’s recovery by claiming want of jurisdiction, on the ground that the action involves partnership accounts, though the fund in his possession represents plaintiff’s interest in a partnership between the parties and third persons, who are strangers to the record.</p> <p>3. Same.</p> <p>Where the defendant has been sued as an individual, upon a personal liability, and has chosen to admit the claim for the purpose of receiving some expected benefit from a counterclaim, he cannot recede from his position and point to a supposed demand which strangers to the record may make upon him, touching the fund.</p>

<p>1. Evidence—Admissions.</p> <p>In an action against the surviving member and the executor of the deceased member of a firm, the admission of the deceased member that ha was a partner in such firm, is admissible.</p> <p>2. Same—Secondary.</p> <p>Testimony of the bookkeeper of a firm that he made diligent search for its books and found some of them in the cellar of the store, in some old. rubbish, and among them the covers of the books in question, but the insides of them had been torn out and taken away and he could not find them, is sufficient proof of loss so as to admit his testimony as to their contents.</p> <p>8. Witness—Privileged communication—Attorney and client.</p> <p>A conversation between an attorney and client is not privileged as to matters in which the attorney was not at the time acting for the client.</p>

<p>Application by James Freel for peremptory writ of mandamus to compel the comptroller of the city of Brooklyn to draw a warrant in payment for work done and material furnished under contract. Granted.</p>

<p>Certiorari, in re Bloomingdale and others, to compel the granting of á liquor license by the board of excise.</p>

<p>I. Abatement—Another action pending. n</p> <p>The complaint, in this action, was held not to show on its face that another action was pending 'between the parties for the same cause.</p> <p>SB. Same,</p> <p>A complaint is not demurrable, as showing that another action is pending, merely because it shows that the same cause might have been tried in a pending suit.</p> <p>3. Same.</p> <p>In such case, the demurrer, to be successful, must establish the fact, from the face of the complaint, that another action is pending for the same cause between the samé parties.</p> <p>4. Lis pendens—Application.</p> <p>Section 1671 of the Code has no application to a party to an action who has been duly served with process therein.</p>

Action by Maria L. Winterson against Hector M. Hitchings, in which there was a judgment in favor of plaintiff for certain costs. Defendant moves to set off such judgment against a judgment against plaintiff rendered in another action, and assigned to defendant

<p>Appeal from a judgment dismissing the complaint on the report of a referee. _ ______</p>

Proceeding by the overseer of the poor of- the town of Ellicottville, Cattaraugus county, to charge the town of Otto, in the same-county, with the support of Martin Chapman, a pauper, then in Ellicottville, on the alleged ground that his settlement was in Otto. From an award by the county superintendant in favor of Ellicotville for costs, the town of Otto appeals.

Action by Miles D. Miller against William Board and Lewis X. Maylender for damages for the nonperformance of an alleged contract between plaintiff and defendants, whereby, as claimed by plaintiff, he was employed by defendants to act as chief of police of the village of Johnstown, but was not permitted to enter on the discharge of the functions of such office. From a judgment in favor of plaintiff, defendants appeal.

<p>Service—Foreign corporations.</p> <p>The provision of chapter 8 S3 of 1884, which appears in substance in section 30, chapter 690 of 1892, provides a method in which a foreign corporation may be served, hut does not exclude any other method of legal service, and a party may make legal service, under subdivision 3, section 432 of the Code, on the managing agent of such corporation, unless a person has been designated by the corporation in compliance with the requirements of subdivision & of said section.</p>

<p>Appeal from an order denying a motion to substitute as defendant the administrator of the original defendant, and that the action be continued against him.</p>

<p>Appeal from an interlocutory order, sustaining a demurrer to the complaint on the ground that several causes of action are improperly united.</p> <p>The first part of the complaint, consisting of paragraphs numbered 1, 2, 3, 4, states a cause of action in ejectment for the recovery of three parcels of land, closing with an allegation of damage to the plaintiff, “ as near as plaintiff can estimate the same, exclusive of the rents and profits heretofore received, or which may be received by the defendants, or either of them, during the pendency of this action, of five hundred dollars.” Then follow paragraphs numbered 5 and 6. In paragraph 5 it is alleged: “ That there is situated on the first and third described parcels a public boathouse and bowling alley; that the business carried on and in connection with the boathouse and bowling alley has during the season of 1895 been profitable, and that the same has been conducted by the defendants, and. that they have received the rents and profits of such business and that the same amounts to five hundred dollars.” In paragraph 6 it is alleged: “That there is situated on the second described parcel of land an hotel or house of public entertainment, and that the business of the same was carried on by the defendants, and that the rents and profits of said business during the season of 1895, and down to the time of verification of the complaint, were $1,000, and that the same were received by the defendants.” The prayer of the complaint is: First. For the possession of the several parcels of land. Second. Damages for the withholding, including the rents and profits, and the value of the use and occupation, to the amount of $2,000. Third. That the defendants be required to account 'as to the rents and profits received by them from the several parcels of land, or any or either of them.</p>

<p>1. Justice’s court—Judgment—'Validity.</p> <p>A judgment of a justice’s court, not rendered within four days after the trial and submission of the case to him by the parties, is void.</p> <p>2. Appeal—Void judgment.</p> <p>A void judgment is sufficient to support an appeal for the purposes of its review and reversal.</p>

<p>Condemnation pboceedings—Petition—Sufficiency.</p> <p>An application for the condemnation of land, made on a petition which fails to state that the petitioner intends to complete the work for which the land is said to be condemned, is properly denied on oral objections of the defendant.</p>

<p>.'Appeal from a judgment in favor of defendant.</p>

<p>Certiorari to review the decision of the board, of railroad commissioners of the state of New York.</p>

<p>Appal from a judgment in favor of plaintiff.</p>

On October 29, 1895, after examination of one of defendant’s sureties, further examination was adjourned by consent of parties, to-November 7, 1895, at 10 a. m„ On.November 7, 1895, defendant’s attorney gave notice of his engagement in court, and asked that the matter be held till 11 a. m. Whereupon the court made the following order: “ Defendant granted until November 9th, 10 a. m., to give new bond, and to have sureties present for justification.” Whereupon plaintiff made…

<p>Appeal from a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial.</p>

<p>1. Equity—Unconscionable claim.</p> <p>Where a claim is concededly wholly inequitable, a court of equity will • give no relief to the claimant, no matter what his legal rights may be.</p> <p>'3. Estoppel—Equitable.</p> <p>Where a partner in possession of all the firm property conveys part of it by absolute deed to a third person to secure his partner’s interest, without the latter’s knowledge, and subsequently informs his co-partner, when the latter demands his share of the firm property, that he has conveyed it to such third person for him, and the co-partner in a settlement accepts the property so conveyed and releases all claims against his partner, such deed, from the time such settlement is made, operates as an absolute conveyance, or, at least, estops the grantor from asserting to the'contrary.</p>

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

<p>1. Appeal—Evidence.</p> <p>An appellate tribunal- is not warranted in reversing a judgment unless the findings of the trial court are against the weight of evidence, and it clearly appears that the proofs predominate in favor of a contrary result.</p> <p>2. Constitutional law—Statutes—Local acts.</p> <p>Chapter 59 of 1891 is in conflict with section 16, article 3, of the State Constitution, which provides that no local bill shall embrace more than one subject, to be expressed in its title.</p> <p>3. Same.</p> <p>But such statute is not wholly void because it embraces two subjects, but it can be sustained only as to that subject which is expressed in its-title.</p> <p>4. Municipal corporations—Contract for lighting.</p> <p>A contract between a town and a gas company, to supply the town with</p> <p>. gas, is not illegal "because it provides that the company shall be reimbursed by the town for any expenses incurred in making changes in the-gas mains, pipes or lamp posts made necessary by changes in the grade of streets after the company has entered on the performance of the contract.</p> <p>5. Same—Exclusive privileges.</p> <p>A provision in such contract that no other gas or electric light company shall have the consent of the board of improvement of such town to extend its mains or lay its pipes or conductors within the town during the-term of the contract, is illegal and void. ,</p> <p>6. Same.</p> <p>Such a covenant or agreement can have no force or efficacy except during the existence of the board of improvement.</p> <p>7. Same.</p> <p>Chapter 451 of 1894 has not only abolished the board of improvement, but. has vested the control of the streets in the municipal officers of the state.</p>

<p>1. Contract—Entire—Recovery.</p> <p>Though plaintiff fails to perform fully his entire contract, the defendant is not entitled to recover all amounts he has paid the plaintiff on account of the contract, hut can recover only as he shows damages.</p> <p>3. Trial—Instructions.</p> <p>An instruction, “that if the jury shall find from the evidence that plaintiff did not fairly and substantially perform the contract, in all its. parts, defendant is entitled to recover from the plaintiff such damages as-the jury shall find from the evidence to have been sustained by the defendant by reason of such non-performance by the plaintiff,” is not. proper where there is nothing in the case on which the jury can give the. defendant an affirmative judgment for damages.</p> <p>8. Same.,</p> <p>Where the jury determines that the plaintiff has performed his contract, any instructions or refusal to instruct, in case the jury finds that the-plaintiff has not performed his contract become immaterial.</p>

<p>1. Appeal—Conflicting evidence.</p> <p>The verdict of a jury, upon conflicting evidence, will not he disturbed on appeal.</p> <p>3. Same</p> <p>The question whether the cause of the bricks falling from a building upon plaintiff was the fact that they were struck by a derrick, as averred by plaintiff, was held, upon conflicting evidence in this case, to be one for the jury.</p>

<p>Appeal from a judgment in favor of defendants entered on a decision of. the court.</p>

<p>Appeal—Evidence .</p> <p>Where the evidence, if believed, justifies the findings of the referee, the judgment will not be disturbed upon appeal.</p>

<p>1. Executob—Removal.</p> <p>The fact that the relation of a trustee to his co-trustee and to the beneficiaries of the estate is such that his continuance as trustee will.involve the-estate in much needless litigation and considerable expense, will not alone.justify his removal from the office of trustee.</p> <p>2, Same.</p> <p>A feeling of'hostility toward the trustee on the part of the beneficiaries, caused by an attempt on>the part of the trustee to manage the estate not authorized by law, or by the will of the testator, will justify his removal.</p> <p>3. Same.</p> <p>Where one of the executors deposited money of the estate in a bank in his own name, withdrew the same by his own check, payable to himself, and loaned it on call, and made other investments without the consent of his co-executor, unauthorized by law, and appropriated money of the estate to his own use as commissions which had never been allowed, he is properly removed.</p>

<p>Appeal from a judgment in favor of defendant.</p>

<p>1. Appeal—Case—Certificate.</p> <p>The affidavit of the plaintiffs attorney, annexed to the case settled by the judge, that the case contains all of the evidence taken upon the trial, cannot take the place of a statement by the court which is made a part of the case.</p> <p>2. Same.</p> <p>In the absence of an express certificate of the trial court that the case as. settled contains all the evidence upon which the court acted in determin. ing a question of fact, such determination cannot be reviewed on appeal.</p> <p>3. Same—Evidence.</p> <p>Where there is a mere inference to he drawn from hooks, on one side, which is contradicted by the positive oath of a party, on the other, a question is presented for the determination of the trial court.</p>

<p>Attachment—Vacation.</p> <p>TJpon a motion to vacate an attachment, hearsay statements, which ara denied by defendant, are unavailing to sustain it, where the persons . who made such statements' are accessible and it is not shown that their affidavits could not he procured.</p>

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

<p>1. Master and servant—Instruction.</p> <p>Where the master, aware that there is a dangerous place at which his-servant will be put to work, allows the servant, who is ignorant of the danger, to go to that place, fails to inform him or notify him in any way of the extreme risk he will run and negligently f orbears to caution him in any way or to give him the opportunity to decline the service, and the-servant is injured in consequence, he is liable.</p> <p>3. Same.</p> <p>A complaint, alleging such facts, is not demurrable as showdug that the risk was an open one and one of the ordinary risks of the employment, or that the accident resulted from the negligence of a fellow servant.</p>

<p>1. Parent and child—Custody.</p> <p>The right of a surviving husband or wife to the custody of an infant child cannot be afiected by any testamentary disposition of the child by the decedent.</p> <p>2. Deposition—Deceased witness.</p> <p>The deposition of a witness, which was taken to be used in one action, cannot be read in another action after the death of the witness.</p>

<p>1. Mortgage—Foreclosure—Parties.</p> <p>A mortgagee, who has assigned the debt and mortgage, is a proper, though not necessary, party to an action by the assignee to foreclose.</p> <p>H. Same—Answer.</p> <p>Where such mortgagee admits the allegation in complaint that he has assigned and transferred the bond and mortgage, such answer constitutes no obstacle to the rendition of judgment in favor of plaintiff,</p> <p>3. Same—Costs.</p> <p>No costs should be awarded to the plaintiff, on an answer admitting the assignment, where no relief is asked against him.</p>

<p>Executor—Disputed claim.</p> <p>- A personal claim by an administrator against the estate of his decedent: cannot be determined on motion, in an action for partition of decedent’s-land, to direct a referee to take proof thereon, but must be determined by the surrogate in the regular course of adminstration.</p>

<p>1. Trial—Request for verdict. '</p> <p>It is not the rule that a trial court is authorized to withdraw a case and' direct a verdict, in cases where both parties ask for a direction in their favor.</p> <p>2. Same.</p> <p>It is only when no request is made to go to the jury that the party will be compelled to have waived such right.</p>

<p>Appeal from an order making the receiver of the goods and chattels of a life tenant, a defendant in the action, and authorizing him to file a consent to accept a sum in gross in lieu of the-life estate of said life tenant in the lands in partition.</p>

<p>Appeal from a judgment in favor of plaintiff, on a trial without a jury.</p>

<p>Appeal from a judgment in favor of plaintiff,</p>

<p>1. Nbslioenoe—Imputed.</p> <p>Where plaintiff, at the time of the collision with a street car, was riding in a cab driven by her son, who had his own horses, and had no control of the vehicle or the driver or no authority to give instructions for their movements, he is not her agent so as to charge her with contributory negligence on account of his want of care.</p> <p>3. Same—Instructions.</p> <p>An instruction that if the injured party saw the approaching car,and attempted to cross the track in front of it, and erred in judgment as to the i chances of doing so safely, then plaintiff cannot recover, is properly refused.</p> <p>3. Trial—Instruction.</p> <p>A refusal to charge that, if the jury find, as a fact, that defendant’s witnesses are entitled to be believed equally with plaintiff’s, then defendant is entitled to a verdict, is not error.</p> <p>4. Same—Discretion.</p> <p>Where a judge sees that a witness is so confused, by a long or irrelevant cross-examination, that his memory seems to have left him, it is a proper •exercise of discretion to let the,witness rest for a short time in order to •collect his thoughts and become composed, so as to continue his examination.</p>

<p>1. Estoppel—Equitable.</p> <p>Where a party, by his declaration or conduct, has induced another person to act in a particular manner, he will not afterwards be permitted to-deny the truth of the admission, if the consequence would be to work an injury to such other person, or to some one claiming under him.</p> <p>2. Same—Rbsteictions.</p> <p>Where an owner of land contracts with the purchaser of successive parcels in respect to the manner of occupation and improvement of such-parcels, he thereby affects the remainder of the land with an equity which requires it also to be occupied and improved in conformity to the general plan; and this equity is binding upon a subsequent purchaser of the remaining parcel, who has notice of the prior agreement, though his legal-title be unrestricted. So held, .where an improvement company laid out a large tract in building lots, and circulated maps, which contained the statement that only buildings of brick or stone would be allowed to be built thereon, and the same statement appeared in signs placed on the-property, and was made orally by the officers of the company to certain grantees, who covenanted in the deeds to them not to erect on the lots any frame buildings.</p> <p>3. Same—Injunction.</p> <p>In such case, a court of equity has power to grant relief by injunction.</p> <p>4. Same.</p> <p>Such applications are addressed to the sound judgment and discretion-of the court, and courts of equity will refuse such relief when it will result in great hardship and injustice to one party, without considerable gain or utiility to the other.</p> <p>6. Same.</p> <p>The restraining power of the court should not be exercised, unless the property where the frame dwelling is being erected lies in the same street or the same block with the plaintiff’s lots, or if in another street or blocks in close proximity to the plaintiff’s property.</p>

<p>Appeal from a judgment, entered upon the decision of the court dismissing the complaint.</p> <p>The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant. The defendant occupied the building No 32 Washington street, where he carried on the business of repairing steamships. The building was six stories high, with an elevator shaft running from the bottom to the top. The elevator was an uncovered platform that went up and down on a-wire cable, and was used by the workmen in the building to carry iron bars, rods, coal, and other materials used in the business. There was a blacksmith’s shop on the upper floor, and above this floor, in the" roof of the building, there was a scuttle or hatchway, which was closed with two trapdoors, one shutting down from. above and. the other shutting up from below. The upper door was origi-; nally provided with a hook and staple to fasten it, but at the time of the accident the staple was broken, and a nail and string had been put in its place. The lower door was bung upon hingesj and was fastened up by the use of a stick resting upon the ladder running from the upper floor to the scuttle or hatchway. This ladder had board steps about four inches wide, instead of round, and at the time of the accident the steps were greasy and slip-" pery. The elevator platform was uncovered, had no grating or screen or iron above it. The accident occurred July 3, 1893. The plaintiff was going upon the elevator in the performance of his duties. At the same time, McDowell, another employe had-gone up the ladder to fasten the lower door in the scuttle or hatchway in the roof. He had with him a piece of wood and a oaken mallet, the one or the other to be used in securing the lower door. The stick generally used for the purpose was gone. McDowell pushed the door up to its place, and tried to fasten it with the piece of wood, but it did not work. He tried the mallet, and that would not do. He then held the mallet in one hand, and tried to. work the piece of wood in tight between the door and the step of the ladder, and in doing this his foot slipped on the ladder, and the mallet slipped out of his hand and fell. It struck the floor below, and .bounded into the elevator shaft, and, falling down, struck the plaintiff, who was coming up on the elevator, upon his head and shoulders, and caused the injuries for which the action was brought. McDowell was a boiler maker, arid his hands were greasy and slippery at the time of the accident. The plaintiff had been in the defendant’s employ for twenty-one years, was originally a machinist, and was made assistant superintendent in March or April, 1893. The business was moved into the Washington street building a few months before the accident. There had been a soap manufactory in the building before that. Changes were made in the building to adapt it to the uses of the business, from time to time, before the accident. Plaintiff had knowledge of these changes. He personally directed the location and setting up of the machinery. He reported to the defendant such alterations and repairs as were necessary to be made in the. building, and they were generally made under plaintiff’s direction. As to the elevator, boards were put around the hatches on each floor, and coverings, like trapdoors; new pulleys were put in the elevator, and a new wire cable for it to run on ; also a new carriage and car. Plaintiff, had charge of these changes and repairs. He also directed repairs in the floors of the building, and suggested any other alterations or repairs that he thought ought to be made.</p> <p>On the trial the plaintiff read in evidence a deposition made by defendant, wherein defendant testified that the inspector of buildings called upon him, after he went into the Washington street building, and, among other things, directed him to put a covering or roof over the elevator; but he did not comply with this direction until after the accident. The plaintiff alleged in his complaint that his injuries were caused solely by the negligence of the defendant, and by the improper and defective construction of the hatchway in the roof of the building; and plaintiff’s counsel, iri his brief, claims the real cause of the accident was the defective construction of the hatchway or scuttle in the roof and the defectictive condition of the ladder leading to it.</p>

<p>1. Corporations—Directors—Elec iton.</p> <p>Where, in. an election of officers of a corporation, printed ballots had been prepared containing the names of such candidates as had been theretofore placed in nomination, among whom was a candidate for secretary, and another candidate was nominated for the same position, and his name was directed to be written on all the ballots in a space left for that purpose, and in casting the ballots the greater number of those voting erased one of the two names, but two ballots were cast containing both names, with neither erased, and, discarding such ballots, neither nominee had enough to elect, the written name cannot, in such case, be considered as controlling the one printed in indicating the choice of the voter, and the two ballots were properly rejected and a new vote ordered.</p> <p>'3. Same.</p> <p>Where the voter can only designate his choice by striking out a name, the mere writing^ of a name upon the ballot underneath the printed name for some office will raise no presumption that the person writing it intended to vote for the one whose name appears thereon in writing, as against the person whose name is printed.</p>

<p>1. Appeal—Evidence.</p> <p>A judgment on a verdict will not be interfered with where there is any evidence to sustain it.</p> <p>2. Negligence—Burden op proop.</p> <p>Where a car has stopped and the passengers are called upon to alight, if, while in the act of alighting, a passenger is thrown from the car by a jerk of the car, it is necessary for the company to prove that it was not responsible for the happening of that movement, in order to absolve itself from liability.</p> <p>8. Same.</p> <p>It is negligence upon the part of the company to allow the car to move while the passengers are in the act of alighting.</p> <p>4. Same—Contributory.</p> <p>It is not negligence as a matter of law, for a passenger to get off a car. which is perfectly still, and which is stopped for the purpose of permitting the passengers to alight, without holding fast to supports.</p>

<p>Action by the Dyker Meadow Land & Improvement Company against George H. Cook, on a contract for the conveyance of land, submitted on agreement of parties.</p>

<p>1. Supplementary proceedings—Dispute.</p> <p>In supplementary proceedings under section 2447 of the Code, the court has no power to determine the question of ownership ; and, wherever a> dispute exists in good faith, the parties should he left to their action.</p> <p>2. Attorney and client—Lien.</p> <p>An attorney, who has in his possession money belonging to a client, has a lien thereon for services rendered in proceedings other than the suit in which the money was recovered.</p>

<p>1. Damages —Elevated railway.</p> <p>Where, in an action against an elevated railway company for injury to the fee value of abutting property, it appears that the rental value had declined only $60 per year, and the recognized ratio between rental and fee values is about ten per cent., such decline should be taken as a basis for establishing the damages to the fee value.</p> <p>2. Same—Expert evidence.</p> <p>The court ought to reject the statements of an expert on value when his testimony is at variance with any substantial basis and can only be supported by the adoption of his arbitrary standard.</p> <p>3. Same.</p> <p>The fee damage is most satisfactorily established by ascertaining how the rental values have been affected by the act which interferes with the property.</p> <p>4. Same.</p> <p>The inquiry is limited alone to this, and the whole subject is to he considered as though the property was sought to be condemned by right of eminent domain.</p>

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

<p>Appeal from an order, dismissing a writ of certiorari after its allowance, and an order denying a motion to amend the petition.</p>

<p>1. Personal injuries—Negligence.</p> <p>In an action for the loss of plaintiff’s eye, the burden rests upon the plaintiff to show that his subsequent neglect did not contribute to the injury, and the conclusion to be drawn from his testimony as to his conduct after receiving the injury, is one of fact.</p> <p>2. Same—Damages.</p> <p>Where the rule, applied in determining the plaintiff’s damages, permits the jury to capitalize the plaintiff’s loss of earning power, it is plainly erroneous.</p>

<p>1. Corporation—Mortgage—Assent.</p> <p>Where real estate of a corporation, on which there is a mortgage executed in its behalf by .the president, to secure its bonds, is sold on execution of its president, and is purchased from him by another party, subject to the mortgage, neither the corporation, its president or the purchaser is-in a position, in an action for foreclosure of the- morgage, to assert its invalidity on the ground that the assent of stockholders, in writing, on the-giving of the mortgage, required by chapter 611 of 1875, as amended by chapter 394 of 1888, had not been given.</p> <p>2. Same—Lien—Discharge.</p> <p>Where a purchaser of the property- of the corporation, subject to a. mortgage to secure its bonds, transferred it to the company in payment of part of his subscription to its stock, with an agreement by the company to accept any surrender to it for cancellation, of the whole or any part of said bonds, in payment of the purchaser’s subscription, the portion of such bonds which have been accepted under the agreement by the receiver-thereafter appointed for the company cannot participate in the benefits of the mortgage but must be canceled.</p>

<p>Appeal from an order of the surrogate fixing the amount of transfer tax due from the estate.</p>

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

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

<p>1. Deposition—Right of party.</p> <p>A party has a right to read only so much of a deposition as he desires.</p> <p>S. Witnesses—Examination of adverse.</p> <p>In the examination of adverse parties or witnesses, a party is entitled to a considerable latitude, and it is error to exclude questions fairly intended to elicit facts.</p>

<p>1. Contracts—Foreign.</p> <p>No presumption is to be indulged in that, in countries in which the civil law prevails, its rules are indentical with those of the common law, or with the provisions of the statutes of this state respecting written obligations to answer for the debt, default or miscarriage of another.</p> <p>2. Same.</p> <p>Where a person is seeking to enforce rights acquired under a contract, made abroad, the courts of this state will determine the rights of the parties to the contract by our own law, and, if the law of the place in which the contract was made differs in any respect from the law of forum, SO' that liability according to the lex loci contractus would not attach or would be avoided, it is for the defendant claiming the benefit of the foreign law to show the existence of its provision invalidating the contract, sued upon.</p> <p>3. Same.</p> <p>When a suitor is properly in court upon his contract, the remedy will be-afforded according to the law of this state and the contract stipulations-enforced, unless a different law governing the contract is made to appear. In such case, it must be set up by the party claiming advantage under it.</p>

<p>1. Gift—Inter vivos—Undue influence.</p> <p>Where the parties stand in a confidential relation to each other, and the "benefit is derived by the party holding the dominant position, -which naturally excites suspicion, the onus of proving the transaction to have been fair and such as the party conferring the benefit understood and intended, is cast upon the recipient.</p> <p>3. Same—Proof.</p> <p>The evidence, in this case, was held sufficient to establish a gift inter vivos of land.</p> <p>8. Same.</p> <p>Where every essential step is taken to vest the donee with title to and dominion over the property, subsequent differences between donor and donee cannot defeat its effect.</p> <p>4. Same—Consideration.</p> <p>A reservation of a part of the estate granted will not constitute consideration for a grant of the estate itself.</p> <p>5. Same.</p> <p>Where the consideration for the deed is in fact the love and affection which the grantor bore for her granddaughter, it is a good and sufficient consideration between parties relative of the blood.</p> <p>6. Same.</p> <p>The fact that the deed did not express the true consideration is no objection to its validity.</p> <p>7. Appeal—Reason for decision.</p> <p>Because the court states a wrong reason for its determination, it is no ground for reversing its conclusion when the facts warrant the judgment rendered.</p> <p>8. Mortgage—Liability of grantee.</p> <p>Where land, subject to a mortgage, is conveyed in consideration of love and affection, equity will require the grantee, who took with Knowledge of the 'incumbrance, to assume the same, in the absence of any agreement ‘ by the grantor to pay it.</p> <p>9. Appeal—Removal.</p> <p>To warrant the reversal of a judgment it must appear that the conclusion is against the weight of evidence, or that the proof so clearly preponderated in favor of a contrary result that error is established with a reasonable degree of certainty.</p>

<p>James M. Hunt, for county treasurer; George A. Strong, for executor.</p>

<p>Appeal from a judgment for plaintiff entered on a verdict and from an order denying a motion for a new trial.</p>

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

<p>Appeal from a judgment in favor of plaintiff and from an order -denying a motion for a new trial.</p>

<p>1. Elevated railroads—Abutting property.</p> <p>Where, on the trial of an issue of damages caused to certain abutting property by the construction of an elevated railroad, evidence is offered of the course of rents of adjacent abutting property, which was objected to on the ground that the property as to which the evidence was offered was entirely dissimilar in character, location and use from the property in suit, “arid also on other grounds,” the objection does not raise the point that-the evidence offered tendered to the court a different issue from that directly involved.</p> <p>2 Same—Decision.</p> <p>The fact that the decision of the court is in form a determination that the easements in and of themselves were of the value specified, does not call for a reversal where the court intended to find that the consequential damages to the fee values in consequence of the taking of the easements was the sum fixed upon.</p> <p>3, Same—Finding on appeal.</p> <p>The general term will supply a finding that the consequential damages, are in the amounts fixed by the trial justice.</p>

<p>Appeal from a judgment for plaintiff, entered on a verdict, and’ from an order denying a motion for a new trial.</p>

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

<p>Appeal from a judgment in favor of plaintiff, entered on a decision of the county judge after a trial without a jury.</p>

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

<p>2. Railroads—Damages—Improper construction.</p> <p>By the common law, the relation of dominant and servient tenements, does not apply between owners of adjacent lands in respect to surface waters, and the lower proprietor may raise the surface of his land and make erections thereon, though the effect thereof may be to obstruct the flow of surface water from the lands above to the injury of the owner thereof.</p> <p>3. Same.</p> <p>A railroad corporation, in the absence of negligence and unskillfulness in the construction of its road bed. is not liable to a land owner for injury from the overflow of surface waters occasioned by the obstruction of the load bud.</p> <p>3. Same.</p> <p>There is nothing in the business of a railroad corporation that should deprive it of the benefit of the rule where the obstruction is not wanton or unnecessary.</p> <p>4. Same.</p> <p>Such company is not required to construct culverts or passageways, through its embankment for the passage of surface waters from the lands-of others.</p>

<p>Appeal from an affirmance by a surrogate’s court of an order fixing and imposing a tax.</p>

to set aside such service. February 6, 1896, George A. Stearns made an affidavit entitled' in the action, wherein he stated, in substance, that he was the attorney for the defendant in the action for the motion only ; that defendant was a foreign corporation organized under the laws of Canada; that it was doing business in this state,, and had complied with the laws of the state; that pursuant to law the defendant had duly designated the superintendent of insurance of the…

<p>Appeal from a judgment in favor of plaintiffs.</p>

<p>1. Mechanic's lien—Abchitbct.</p> <p>An architect, who only furnishes plans, but performs no work upon the-building, is not entitled to a lien.</p> <p>2. Same.</p> <p>It is the part which the architect takes during the construction of the-building that draws his services within the lien law.</p> <p>8. Same—Modification of flans. '</p> <p>Where, before the building was commenced, the plans were modified, byj the direction of the owner, so as to provide for the present erection of only one-half the entire building, the architect is entitled to a lien for about .one-half his commissions for the entire plans, and, in addition, for all his-expenses and his commission for superintendence on the amount actually expended.</p>

<p>Appeal from an order denying a petition to have the election for the incorporation of the proposed village of Mount Vernon declared illegal.</p>

Appeal .from a judgment disallowing the creditor’s claim and «charging him with costs and $500 counsel fees. The claim was presented to the assignee, who refused to allow it. Thereupon the claimant applied to the court, by petition, for an order of reference to adjudicate as to his claim. The assignee made answer to the petition, and thereupon the .reference was -ordered to hear, try, and determine the issue made as to the allowance of the claim. .

Appeal from an order, denying a motion to set aside the referee's report, and from an order confirming the same and ordering judgment against the receiver,

<p>1. Sale—Vesting of title.</p> <p>Where, by an agreement between buyer and seller, the seller Is to do anything to put the goods in that state or condition in which the purchaser would he bound to accept them, or where anything remains to be done to ascertain quantity or quality before the duty to deliver attaches, or where the buyer is bound to any condition precedent, the title will not pass.</p> <p>2. Replevin—When lies.</p> <p>A vendor, who has merely the right to rescind for fraud, cannot, where the property is seized under an execution against the purchaser before I any steps by the vendor towards rescission, maintain replevin against the- ! sheriff.</p> <p>3. Conversion—When lies.</p> <p>By giving notice and expression of his election to rescind the contract,, the vendor puts himself in position, technically, to maintain an action for conversion.</p> <p>4. Same.</p> <p>His subsequently acquiring possession of the goods, by process of replevin or otherwise, will not necessarily defeat his right to maintain trover, though it will go in mitigation of damages.</p> <p>6. Same.</p> <p>Where a levy is made, even though property is not removed from the-actual possession of the owner, or where the property is restored to his-possession, an action of trover will lie.</p> <p>6. Fraud—Insolvency.</p> <p>The fact of insolvency and the failure of a debtor to disclose the condition of his business, unless there is an intent not to pay for what was purchased, do not constitute such fraud as will entitle a creditor to rescind a, contract. _ _____</p>

<p>1. Equity—Trespass.</p> <p>Repeated and continuous tresposses furnish good ground for equitable < relief.</p> <p>2. Easements—Creation.</p> <p>Easements may be created by agreements or covenants that one shall have a right or privileges in the state of another, as well as by expressed , grants.</p> <p>3. Same.</p> <p>No one can grant an easement greater in extent or duration than carved out of the' estate which the grantor has.</p> <p>4. Same—Lies tenant.</p> <p>... A life tenant can create an easement, extending during his life.</p> <p>•S. Same—Executobs.</p> <p>Executors and trustees under a will with power to sell, may, in carrying out the provisions of the trust, convey an easement in favor of lands already sold, when such conveyance appears distinctly advantageous to the estate.</p> <p><5. Same—Grant.</p> <p>A grant in gross is never presumed when it can be fairly construed as appurtenant to some other estate.</p> <p>'17. Same.</p> <p>Where the agreement provides that the parties shall have the use of the proposed way “ for access to and egress from their own lands lying near the same, and for the use of their survivors,” the right of way thus granted is not an easement personal to the grantee but is appurtenant to the lauds he then owned: and, on purchasing other lands lying near the road, he has a right of way over it to such tracks.</p> <p>.% Same.</p> <p>All easements, to which a land owner has a right in the soil of a third person, will pass to the grantee of the land under the general words of conveyance, “ together with all easements and appurtenances,” and even though tha word “easement” is omitted, the word “appurtenances” is sufficient to carry those rights. ____ .. ^</p> <p>'3. Same.</p> <p>Where a party acquires his easement by grant, his title will not be affected by a non-user, unless accompanied with an intent to abandon the easement.</p>

This action was brought upon a promissory note made by the-defendant Eosa Lang, payable to the order of the plaintiffs (appellants) for the payment of the sum of $130, with interest, two-months after date, the date being the 9th day of December, 1890.

<p>Bill of particulars—When granted.</p> <p>Where there is no allegation in the moving papers that a bill of particu- , lars is necessary to enable the defendant to prepare his answer, his motion for a bill of particulars, made before answering, demurring or otherwise; moving in reference to the complaint, is premature.</p>

<p>1. Corporations—Stockholders—Liability.</p> <p>By the terms of the amendment of chapter 333 of 1853 to the act of 1848, the property purchased must be such as is necessary for the business of the corporation, and the fact whether such property is in fact necessary for the purposes of the corporation is to be determined in the same manner as other controverted questions,</p> <p>2. Same.</p> <p>The purchase by a corporation, organized solely for the manufacture of electric appliances,- of the "right to act as agents for the sale of electric supplies manufactured by another company is ultra vires.</p> <p>3. Same—Powers.</p> <p>The enumeration of the powers of a corporation in its charter implies exclusion of all other powers. _</p>

' The action was brought to recover rent under a written lease under seal. In the title of the action the plaintiffs were named as executors of and trustees under a last will and testament.

The plaintiffs, who are copartners in the wholesale fur business in New York, bring this action to recover damages for the failure -of the defendant’s company (a joint stock association, engaged in the transporation business) to transport within a reasonable time ■it case of Astrakhan furs, delivered by the plaintiffs to-such company for transportation to Sterling, MacCredie & Co., at Toronto,, Canada.

<p>Appeal from an order vacating an order of arrest.</p>

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

<p>Motion for reargument.</p>

<p>Defendant moves for reargument, or for leave to appeal to the appellate division.</p>