Volume 75 — New York Reports

<p>The Code does not require a complaint, in an action for the claim and delivery of personal property, to be in any specific form; the only requirement in reference thereto is the general one, that it shall contain a plain and concise statement of the cause of action. (Old Code, § 142; New Code, § 481.)</p> <p>"Where a principal has executed and deposited with his agent negotiable obligations, to be issued by the latter in certain contingencies, which do not occur, and the agent refuses to return them on demand, an action in equity may be maintained by the principal against the agent to compel a surrender of the obligations, and for damages arising from the detention, or, in case a surrender cannot be made, for the value of the instrument as valid obligations.</p> <p>Where a complaint contains the requisite allegations for such an action,, that it avers some facts which the Code (section 207) requires shall be shown by affidavit, where a delivery is claimed, or that the alternative relief is asked, does not make the action one in replevin.</p> <p>In determining, in such an action, the value of the obligations for the purpose of the alternative judgment in case the defendant does not surrender them, where they have not matured, it is to be assumed that they are in the hands of a bona fide holder for value, and the prima fade: value is the amount unpaid upon the instruments, principal and interest-This may be met by proof of inability of the maker to pay them, in whole or in part, but not by proof of the market value, as the maker is liable to meet his obligation in full, and this is its value, unless it is shown that it cannot be enforced against him for that amount.</p>

The complaint in this action alleged, in substance, and it appeared on the trial, that defendant issued to plaintiff a policy of fire insurance for $3,000, upon certain buildings therein described, “loss, if any, payable to Peter Briggs, jr., mortgagee.” * * * The amount of loss or damage “to be paid sixty days after due notice and proofs of the same made by the assured, * * * in accordance with the terms and conditions of this policy, unless the property be replaced or the…

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and ■affirming an order denying a motion for a new trial. (Reported below, 10 Hun, 358; mem. of decision on former appeal, 50 N. Y., 692.)</p> <p>This action was against defendant for alleged malpractice as a surgeon.</p> <p>Plaintiff fell from a horse and dislocated the elbow joint of her left arm. Defendant was called in and operated upon the arm. The claim of plaintiff was that through want of skill, or negligence, defendant in fact never reduced the dislocation, or that if he did so he negligently omitted the necessary precautions to keep the bones in place, and in consequence they became displaced.</p> <p>The further facts appear sufficiently in the opinion.</p> <p>A surgeon engages that he possesses that ordinary learning and skill possessed by others in the same profession which is regarded as necessary to qualify him to engage in such business. (Leighton v. Sargeant, 7 Foster [N. H.], 469; S. & R. on Reg., §§ 435-437; 1 Bouv. Inst., § 1005.) He does not undertake for extraordinary care and diligence any more than he does for extraordinary skill. (Purves v. Landell, 12 Cl. & Fin., 91; S. & R. on Neg., § 434 and note 4.) Such surgeon exercising- his skill to the best of his'judgment is not responsible for any errors he may commit. (Pitt v. Yalden, 4 Burr., 2060; Swinfer v. Chelmsford, 5 H. & N. [Exch.], 890, 921, 924; S. & R. on Neg., § 442; Taft v. Carter, 59 Barb., 67-70.) Even if plaintiff was misled by the physician’s orders as no such fact was pleaded it is not available in this case. (Bemus v. Howard, 3 Watt, 255; Pierce v. Kinney, 59 Barb., 61.) It was error to receive in evidence proof of particular cases of supposed unskillfulness of defendant as a surgeon in answer to proof of his reputation as a skillful surgeon. (14 Wend., 110-111; 6 N. Y., 104; 1 Keyes, 250; 2 Phil. Ev. [C. &. H. ed.] 291; 1 C. & H. notes, 764, 766.)</p> <p>The law implies that surgeons and physicians in the treatment of all cases they undertake will exercise reasonable and ordinary care and diligence, and give attention' proportionate to the delicacy and importance of the operation and case. (13 N. Y., 9.) If the settled practice and surgical authority allow but one course of treatment in the case, then any material departure from such course might properly be regarded as the result of a want of care and attention, and such departure, if made in a case which is doubtful or uncertain, is made at the peril of the surgeon. (Patten v. Wiggen, 51 Me., 594; Ritchey v. West, 23 Ill., 385; Long v. Morrison, 14 Iud., 595; Bellinger v. Craigue, 31 Barb., 534; Wood v. Clapp, 4 Sneed. [Tenn.], 65; Caudless v. McWha, 22 Pa., 261; Bowman v. Woods, 1 Iowa, 441; Landon v. Humphrey, 9 Conn., 209; Leighton v. Sargeant, 7 Foster, 460; 60 Barb., 488; 50 N., Y., 696.) When a surgeon is employed to treat a dislocated or broken limb and makes several visits in the course of his employment, the contract he enters into is entire. (Bellinger v. Craigue, 31 Barb., 534; 1 Chitty on Contracts, §483; Ritchey v. West, 23 Ill., 385.) When a surgeon fails in his duty to exercise the measure of skill, care and attention implied by his undertaking, he is liable in damages to the person employing him. (Bellinger v. Craigue, 31 Barb., 534; London v. Humphrey, 9 Conn., 209; Story on Bail., § 431; see this case, 60 Barb., 488.) It was competent to show that plaintiff had followed defendant’s direction implicitly. (60 Barb., 488, 515, 521; 50 N. Y., 696.) It was proper on cross-examination to ask one of defendant’s witnesses, who had sworn to his reputation as a skillful surgeon, if he had heard of a specific instance of unskillful practice by him. (Leonard v. Allen, 11 Cush., 241; Rex v. Martin, 6 C. & P., 562; 60 Barb., 488; 50 N. Y., 696.) If the court has already charged the law as to the material questions involved it is not error to decline to charge abstract propositions submitted by counsel. (Woody v. Osgood, 54 N. Y., 488; Algier v. Gardner, id., 360, 364; Small v. Smith, 1 Den., 583; 60 Barb., 488, 519; 50 N. Y., 696.) Plaintiff had a right to rely upon the assumption that defendant had done his duty, defendant having often told her he had done it. (Weston v. N. Y. El. R. R. Co., 17 Alb. L. J., 415; 60 Barb., 519; 50 N. Y., 696; Hathorn v. Richmond, 48 Vt., 557; 39 id., 447; Hedgeman v. W. R. R. Co., 13 N. Y., 9; Brown v. N. Y. C. R. R. Co., 34 id., 404, 412 ; Smith v. N. Y. and H. R. R. Co., 19 id.. 127 133.)</p>

<p>The rule that where there is conflicting evidence, or any evidence to sustain a finding, it is error to reverse, has no application where the appellate court has power to review the facts.</p> <p>In such case while proper allowance should be made for the judgment of the trial court, it is not controlling, and the appellate court must assume the responsibility of determining the facts from the evidence.</p> <p>The testimony of a witness which is merely controverted and not otherwise impeached cannot ordinarily be entirely disregarded as utterly false.</p> <p>Where a party previous to executing a written agreement has full opportunity to examine it so as to know its contents, yet voluntarily signs without mating such examination, he cannot claim a reformation of the agreement simply upon evidence that it contains obligations he was not cognizant of and did not intend to agree to; there must be clear evidence of a mutual mistake or of fraud to authorize a reformation.</p> <p>In an action to reform an assignment of a mortgage by striking out a guaranty of payment contained therein, plaintiff’s evidence was to the effect that no guaranty was contemplated by the parties, and nothing was ever said to Mm about guaranteeing. Two witnesses for defendant, however, testified that plaintiff positively agreed to guarantee, immediately before the assignment was drawn, and that the form of the assignment was dictated in Ms presence. Plaintiff testified that he partially read over the instrument and had full opportunity to examine it, but failed to notice the guaranty. Held, that no case was made out authorizing a reformation, and that a judgment of Special Term in favor of plaintiff was properly reversed by the General Term.</p>

<p>Assessors, having jurisdiction both of the person taxed and of the subject matter, are not individually liable for an erroneous assessment'; at least where they act in good faith: to establish a personal liability it must be made to appear that they acted without jurisdiction.</p> <p>The provision of the national banking* act (U. S. R. S., § 5219), providing that the taxation of shaves of stock of national banks “ shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens,” requires that no greater percentage of tax on the valuation of shares shall be levied; it does not apply to an over valuation.</p> <p>The fact that, in making np their assessment roll, the assessors place the valuation of bank shares in a separate item in the column in which personal property is placed, does not invalidate the assessment; this is a " substantial compliance with the provision of said act (j 5219), which authorizes such shares to be “included in the valuation of the personal property ” of the owner, and with the provision of the State statute (§ 1, chap. 761, Laws of 1866), requiring this to be done.</p> <p>The provision of the State statute, requiring such shares to be assessed in the town or ward where the bank is located, is valid. This species of property may be separated from the person of the owner and a situs given it for the purpose of taxation.</p> <p>Under the act of Congress, shares of the stock of national banks may be taxed, irrespective of the fact that the capital of the bank is invested in United States securities.</p> <p>The assessment of bank shares is not subject to a deduction for the debts of the owner, and a refusal to allow such deduction is not a violation of said provision of the act of Congress as to the rate of taxation.</p>

(Reported below, 12 Hun, 653.) The relator was appointed a police surgeon on September 21, 1873, by the board of police, under a resolution which fixed his siilary at $1,500. He accepted the appointment and performed the duties of the office for over two years, drawing his salary as fixed by the resolution. He claimed to be entitled to the salary as fixed by the act, chapter 831, Laws of 1866; l e., $2,250. The relator was an officer.

<p>Appeal from j uclgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 11 Hun, 626.)</p> <p>This action was brought to recover damages for injuries alleged to have been sustained by plaintiff through defendant’s negligence in permitting a bridge or tramway to remain across one of the streets of the city, obstructing travel thereon.</p> <p>It appeared that there was a strip of land in said city, along the Erie canal, about fifty feet wide, running from White street to a bridge across the canal. Some fifteen months prior to the accident, this strip of land had been graded and paved as a street, under and in pursuance of resolutions of its common council, which fixed the grade, etc., and it was used and traveled over as a public highway. The land adjoining this strip, on the side opposite from the canal, was used as a coal yard, and a bridge or tramway extended over the street, which was used to transport coal from the canal to the yard; this structure was about ten feet above the pavement, and was a short distance north of White street. Plaintiff was at the time in the employ of a circus company, and was engaged in driving a team of six horses attached to a vehicle some twenty-one feet in length and ten or twelve feet high, containing lions. Plaintiff was seated upon the top of this vehicle, and drove through White street, turning upon this strip of land for the purpose of crossing the- canal. He was unacquainted with the city and did not know of the tramway. After the leading horses turned the corner, plaintiff looked back to see if the hind wheels of the wagon would clear the corner, and did not look forward or see the tramway until just as the second pair of horses passed under it. Ho made an effort to stop tho horses, but failed to do so in time, and he was caught and crushed between the bridge and the wagon.</p> <p>Upon the trial, the resolutions of defendant’s council for the grading and paving said strip of land, and a resolution passed two days after the accident for the removal of the tramway, and its subsequent removal, were offered and received in evidence, under objection and exception.</p> <p>Evidence offered on the part of defendant to show that the passage from White street to the canal bridge was opened by the State was objected to by plaintiff, and was excluded.</p> <p>As there was no evidence of any legal negligence or omission of care or duty on the part of defendant plaintiff should have been nonsuited. (Gorham v. Cooper, 59 N. Y., 660; Mayor of Albany v. Cunliff, 2 id., 165; Munn v. City of Pittsburgh, 40 Penn., 364; Whitney v. Town of Essex, 38 Vt., 270; 2 Laws of 1869, p. 2384; 2 N. Y., 165; Trustees of Jordan v. Otis, 37 Barb., 50; 1 R. S., 218, §§ 4-8; Laws of 1837, p. 518, § 6.) The tramway being in existence' before defendant assumed'the right to pavo and grado tho passage, the fact that it did this did not impose upon the city a duty or right to remove the tramway. (Hume v. Mayor, etc., of N. Y., 9 Hun, 674; 47 N. Y., 639; City of Madison v. Ross, 3 Ind., 230; Turnpike Co. v. Hoadley, 11 Conn., 464.) Plaintiff should have been nonsuited on account of his admissions as to his own conduct in connection with the accident. (Cawlus v. Mayor, 6 Bosw., 15; Hubbard v. Concord, 35 N. H., 52; Raymond v. Lowell, 6 Cush., 524; Wilcox Case, 39 N. Y., 358; Barker Case, 45 id., 191.) Plaintiff" was guilty of negligence in remaining in an employment rendered dangerous by reason of the insufficiency in number of his co-employes. (Laning Case, 49 N. Y., 534.) The court erred in admitting the resolution of the common council 'as to grading the sidewalk. (Dougan v. Champ. Trans. Co., 56 N. Y., 18.)</p> <p>When a city grades and paves a highway within its corporate limits, and by the exercise of other unequivocal acts of authority over it, invites general travel thereon as a street, it is chargeable with the same duties in respect thereto as though such street had been formally adopted. (Houfe v. Town of Fulton, 34 Wis., 608; 9 Am. R., 568; 17 id., 563; Woodman v. Nottingham, 49 N. H., 387.) Defendant was bound to maintain its streets free from obstruction, and to keep them' in such reasonable repair that a. traveler would be secure in using them. ( Todd v. City of Troy, 61 N. Y., 506; Conrad v. Qity of Ithaca, 16 id., 158.) The question of negligence was one for the jury. (Baxter v. T. and B. R. R. Co., 41 N. Y., 502, Warner v. N. Y C. and H. R. R. R. Co., 44 id., 46; Davis v. N. Y. C. and H. R. R. R. Co., 47 id., 40; Cordell v. N. Y. C. and H. R. R. R. Co., 6 Hun, 46; Dougan v. Champ Trans. Co., 56 N. Y., 1; 54 id., 458; Sheehy v. Burger, 62 Barb., 558; Blanchard v. W. U. Tel. Co., 60 N. Y., 510.) Defendant was estopped from disclaiming its liability for failing to guard this street at the point of the accident on the theory of its not being a highway, and “that no such duty rested upon it. (Houfe v. Town of Fulton, 34 Wis., 608; 9 Am. R., 568; 17 id., 463; Manderchild v. City of Dubuque, 4 id., 254.) The questions whether the vehicle driven by plaintiff was of such unusual proportions that it was not entitled to a passageway over this street, and whether plaintiff’s manner of driving it was negligent, were properly submitted to the jury. (Gregory v. Inhab’ts of Adams, 14 Gray, 242; Gillespie v. City of Newburgh, 54 N. Y., 458.)</p>

(Reported below, 12 Hun, 1.) This action was brought to set aside a release under seal, and to recover a balance alleged to be due plaintiff for money loaned defendant by the firm of C. F. Dambmann & Co., of which firm plaintiff was a partner, and to whose rights he succeeded. The facts are set forth sufficiently in the opinion.

(Deported below, 7 Ilun, 1.) This action was brought to recover for work alleged to have been done by plaintiffs upon' the employment of the water commissioners of the city of Poughkeepsie, under authority of the act, chapter 333, Laws of 1867, and the various acts amendatory thereof. The facts appear sufficiently in the opinion.

(Reported below, 12 Hun, 604.) This action was brought to obtain a judicial construction of the will of Elizabeth M. Walter. The clause of the will in question is as follows : “ Fourth.

Plaintiff • made a claim against the estate of Latham Cornell, of whose will defendants were the executors, for interest upon a promissory note executed by the deceased. This claim was rejected, and was referred by stipulation. The facts, as stated by the referee are in substance as follows: Latham Cornell, the deceased, was the grandfather of Latham C. Strong.

This action was brought to foreclose a mortgage made and executed by Samuel Simon to plaintiff. Simon sold and conveyed the mortgaged premises to ICate M. Cormac, a married woman, by deed, which was accepted by her, which contained a clause declaring that the conveyance was made subject to the mortgage, which the grantee assumed and agreed to pay as part of the consideration money.

<p>Although an observance of the general rule of navigation requiring vessels meeting “ head on ” to turn to the right, is presumptively proper and throws the onus of proving that it was negligence upon whoever challenges its propriety in a particular case, yet if the surrounding circumstances are such as to render it impracticable and unsafe, and those circumstances are known to .those in charge of the vessels, or by proper care they might have known them, negligence may be imputed, unless the general rule is departed from.</p> <p>M., plaintiff’s intestate, was on board of a canal boat, in tow of a steamer, going down the Hudson river; the boat was sunk by a collision with a schooner in tow of another steamer going up the river, and M. was drowned. In an action against the owners of the two steamers for alleged negligence the court charged, in substance, that the respective managers of the two steamers were bound to exercise proper care and diligence in the management of their vessels, whether such care required an observance or departure from the general rules or not, and irrespective of their force if the contest was between themselves. Held, no error; that although in a contest between the two steamers the one might be precluded by way of estoppel from insisting upon negligence in the other, in acquiescing in the course indicated by its own signals, plaintiff’s right of action was not affected thereby. z</p> <p>Plaintiff testified as a witness in his own behalf; certain declarations, made before his appointment as administrator, were offered and received in evidence on the part of defendant for the purpose of impeachment. The court charged in substance that these declarations could not be regarded as evidence, upon the issues in the case, of the facts stated. Held, no error.</p>

(Reported below, 13 Hun, 47.) The facts appear sufficiently in the opinion. The order of the referee authorizing the demurrer could only be questioned by a direct appeal, and was not assailable collaterally.

The facts appear sufficiently in the opinion. Prior incumbrancers may properly be made parties defendant to an action to foreclose a mortgage for the purpose of selling the property free and clear of all liens. (Hancock v. Hancock, 22 N. Y., 568, 571; West. Ins. Go. v. Eagle F. Ins.

The nature of the action and the facts are set forth sufficiently in the opinion. No gift inter vivos or causa mortis was established. (Irish v. Nutting, 47 Barb., 370; Grymes v. Hone, 49 N. Y., 17.) No valid trust existed because the depositor retained possession, means of possession and dominion over the property while she lived, and the cestuis que trust were ignorant of the deposits until after her death. (Wall v. Prov.

(Reported below, 11 J. & S., 562) This action was brought to recover damages for the loss of a quantity of jewelry which was alleged to have been abstracted from one of eighteen boxes, which, with a barrel, were delivered to defendant, at Washington, by one Evers, to be transported to New York and delivered to the consignees, Sackett, Davis & Co., in that city. The facts appear sufficiently in the opinion.

This action was against defendant, a physician and surgeon, for alleged malpractice.

<p>Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, affirming a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.</p> <p>The nature of the action and the facts are set forth sufficiently in the opinion.</p>

EbjíoPv to the General Term of the Supreme Court, in the fourth judicial department, to review judgment of the court of Oyer and Terminer of the county of Cayuga, entered upon a verdict convicting plaintiff in error of the crime of murder in the first degree.

This action was upon a promissory note alleged to have been executed by William Stevenson, defendant’s intestate, dated “ Fort Edward, July 24,1852,” for the sum of $1,000, payable to plaintiff or bearer, thirty days after sight, with interest at six per cent. The defense was that the signature to the note was a forgery. The further facts material to the questions discussed appear sufficiently in the opinion.

This action was brought to recover damages for the alleged negligence of defendant, causing the death of Elizabeth C. Shelton, plaintiffs’ intestate. The evidence on the part of plaintiffs shows, that, on the evening of July 8, 1874, between nine and ten o’clock, the deceased and her husband, Joshua Shelton, with a boy, nine years old, started to cross the Buffalo river in a small boat called a scow, which was sculled by Shelton, with one oar.

Alberger, a judgment creditor of defendant Samuel F. Alberger, to vacate an attachment herein as to property of said defendant. (Reported below, 14 Hun, 379.) The facts sufficiently appear in the opinion. Plaintiff was not entitled to read further proofs in support of the attachment. (Code, § 683; Yates v. North, 44 N. Y., 271.) The attachment-cannot be sustained upon the affidavits upon which it was granted. (7 How. Pr., 383; id., 229; 8 Abb.

The former part of the order was granted because, by clerical error, the name of Leland was omitted from the prayer for judgment for deficiency in the copy of complaint attached to the judgment-roll, the latter part on the ground that one Flynn, who was the owner of the equity of redemption, whose deed was not recorded, was not made a party defendant.

Farnam, to make and file his accounts, etc. (Reported below, 14 Hun, 159.) The order of Special Term was based upon a petition of Amy… Held: at which it was resolved that deponent take possession of the property, dispose of the same, and apply the proceeds pro rata to the payment of the debts of the insolvent ; that acting under this authority he took possession of the goods, and, with the approval and consent of the assignor, refused to qualify as assignee by giving a…

<p>Appeal from order of the General Term of the City Court of Brooklyn, affirming an order of Special Term continuing this action in the name of Thomas Cregin as administrator of the plaintiff, he having died pending the action.</p> <p>This action was brought by plaintiff to recover for the loss of the services and society ot his wife, and for expenses of medical attendance, etc., the complaint alleging, in substance, that defendant received the wife of the plaintiff upon one of its cars as a passenger, that she paid her fare and that through the negligence of defendant and its servants she was thrown down and seriously injured.</p> <p>This action did not survive but died with the plaintiff. (Carroll v. S. I. R. R. Co., 65 Barb)., 32; 58 N. Y., 126; Fried v. N. Y. C. R. R. Co., 25 How. Pr., 287; 1 Saunders, 216; Hayden v. Vreeland, 8 Vroom., 372; 18 Am. R., 723; Sherington’s Case, Cowper, 576; Humbly v. Prott, id., 376; Haight v. Hoyt, 19 N. Y., 467; 2 Wms. on Exrs., 1470; 1 id., 670; People v. Gibbs, 9 Wend., 29; 2 Add. on Torts, 538, note; Freem., 225; Yelv., 89; Jeanes v. Davis, 3 Penn. L. J. R., *406; Green v. H. R. R. Co., 3 Abb. Ct. App. Dec., 278; Wade v. Kalbfleisch, 58 N. Y., 282, 287; George v. Van Horn, 9 Barb., 523; People v. Tioga C. P., 19 Wend, 73; McKee v. Judd, 2 Kern., 622; Howard v. Peck, 50 Barb., 202; Zabriskie v. Smith, 13 N. Y., 322; Hyslop v. Randolph, 11 How., 97; Lamphere v. Hall, 26 id., 509; Bk. of Cal. v. Collins, 5 Hun, 209; Gram v. Spier, 58 Barb., 386; McKee v. Judd, 2 Kern., 625; Fried v. N. Y. C. R. R. Co., 25 How. Pr., 286.)</p> <p>The actions founded in tort which do not survive are limited to the exceptions in section 2 of 3 Revised Statutes [Bank’s 6th ed.], 732. (Haight v. Hayt, 19 N. Y., 467-474; Fried v. N. Y. C. R. R. Co., 25 How. Pr., 286-288.) This action though in form for a wrong is founded on contract. (Campbell v. Perkins, 8 N. Y., 438-441; Cox v. N. Y. C. and H. R. R. R. Co., 63 N. Y., 421.)</p>

Appeal on behalf of defendant James W. Gillies from judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 13 Hun, 422.) The facts appear sufficiently in the opinion.

(Reported below, 11 Hun, 311.) This action was brought to recover rent. The complaint alleged that the parties entered into a written lease by which defendants leased of the plaintiff certain premises in Brooklyn for the term of five years, from May 1, 1870, at the yearly rent of $3,500, and claimed to recover rent accruing May 1, 1872. The defendant Smith alone appeared and answered.

The complaint in this action after setting forth the incorporation of defendant, alleged as follows : “Third.

<p>A mere change in the phraseology or in the arrangement or division of the sections of an antecedent law, incorporated in the Revised Statutes, will not be construed as a change in the law, unless the alteration is such as evidently purports a legislative intent to work such a change.</p> <p>In an action for limited divorce, brought by the wife against the husband, the court, after it has denied the principal relief sought on the ground that the evidence failed to show facts to establish any of the causes for which a separation can be adjudged, has no power to give judgment awarding the custody of the children of the marriage to the plaintiff and malting provision for their maintenance out of the property of the husband ; upon failure of the plaintiff to’make out a case for a divorce the defendant is entitled to judgment dismissing the complaint.</p> <p>The provision of the Revised Statutes (2 R. S., 147, § 55) authorizing a decree for the support and maintenance, of the wife, although a decree for separation be not made, only applies where cruel and inhuman treatment or other cause of divorce is made to appear to the court.</p> <p>The equity powers of the court cannot be invoked to sustain such a judgment ; the action being a statutory one the power of the court is to be sought in the statute itself, and only such judgment can be rendered as is authorized thereby.</p> <p>Nor is such relief justified by the provision of the statute (§ 59) authorizing, in an action by a married woman for divorce or separation, an order for the custody of the children “ during the pendency of the cause or at its final hearing or afterwards; ” this simply provides for the provisional custody of the children, and for awarding their custody when a decree shall be granted.</p> <p>It seems, that where a husband and wife live separate without being divorced, the remedy of the wife, seeking custody of the minor children, is by habeas corpus. (2 R. S., 149, §§ 1, 2.)</p>

This action was brought by plaintiff under the “ civil damage act” so called.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 11 Hun, 347.)</p> <p>This action was brought to recover damages for injuries alleged to have been sustained through defendant’s negligence.</p> <p>The facts were substantially as follows :</p> <p>On the 4th of February, 1876, plaintiff was driving a truck up Second avenue, in New York city, upon the up or right hand track of defendant’s railroad, the right or off wheels of the wagon running in the groove of the eastern rail, and the left hand wheels running outside of the left hand rail of the up-track, between the up-track and the down-track, which, at this point, were about seven feet apart.</p> <p>As he approached Seventy-eighth street, there being no intimation of danger, the left hand wheels of the truck broke through a covering or bridge of planks and beams, which had been built by defendants over a trench running under the street, and which was concealed at the time by a covering of snow; plaintiff was thrown from the truck to the ground and sustained the injuries complained of.</p> <p>It appeared that one Riss, under a permit from the city authorities, had made this excavation for the purpose of connecting his house with the sewer. He had notified defendant, in advance, that he was going to dig under its tracks; whereupon the railroad company took up the street pavement for six or seven feet on each side of the trench from the space between its tracks, and laid down planks or joints, which were about twenty feet long and from three to five or six inches thick. The point at which the truck broke through this covering or bridge was about one foot from the westerly rail of the up-track, and the edges of the joists or planks were split off as the wheels went down between them. Plaintiff offered in evidence a contract Between defendant and the city of New York by which it was agreed that defendant “ should pave the streets in and about the rails in a permanent manner, and keep the same in repair, to the entire satisfaction of the street commissioner.” The contract was objected to by defendant’s counsel, objection overruled and exception taken.</p> <p>Further facts appear in the opinion.</p> <p>Defendant was not liable unless some negligence was shown on its part which contributed to the accident. (Unger v. Forty-second St., etc., R. R. Co., 51 N. Y., 497; Parrott v. Wells, 15 Wall., 524, 537; Livingston v. Adams, 8 Cow., 175; Losee v. Buchanan, 51 N. Y., 476; Baulec v. N. Y. and H. R. R. Co., 59 id., 356, 365, 366; Cleveland v. N. J. Steamboat Co., 68 id., 306, 310; Welfare v. London and Brighton R. R. Co., L. R., 4 Q. B., 693; Touitellot v. Bosebrook, 11 Met., 460; Cotton v. Wood, 8 C. B. [N. S.], 568; Deyo v. N. Y. C. R. R. Co., 34 N. Y., 9; Lamb v. Camden Amboy R. R. and S. Co., 46 id., 271, 279; Terry v. N. Y. C. R. R. Co., 22 Barb., 574, 586; Metropolitan R’y. Co. v. Jackson, 3 App. Cas., 193, 200 [Des.], 877; Bridges v. North London R. Co., L. R., 7 H. L., 213.) Defendant was not bound to cover the excavation or support the surface of the street where the pavement had been undermined by workmen under the authority of the city government. (Brooklyn v. Brooklyn R. R. Co., 47 N. Y., 475, 483; Lowell v. Spaulding, 4 Cush., 277; Young v. Yarmouth, 9 Gray, 386, 390; Payne v. Rogers, 2 H. Bl., 350.)</p> <p>Defendant was bound under its agreement to keep the streets in and about its rails in repair, (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 480.) Having absolute and exclusive control of that portion of the street it was liable for injuries sustained by plaintiff through its neglect to discharge its obligations under the contract. .(Conrad v. Ithaca, 16 N. Y., 159, 171; Conroy v. Gale, 5 Lans., 344, 348; aff., 47 N. Y., 655; Masterton v. Village Mt. Vernon, 58 id., 394; Hicks v. Dorn, 42 id., 53; French v. Donaldson, 57 id., 496, 500; Davis v. Lamoile Plank Road, 27 Vt., 602; Penn, and Ohio Canal Co. v. Graham, 63 Penn., 295; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y., 480; Yale v. Hampden Turnpike Co., 18 Pick., 359; Wendell v. Mayor Long, 4 Abb. Ct. of App. Cases, 563, 574; Mayor of Baltimore v. Pennington, 15 Md., 12; Robinson v. Chamberlain, 34 N. Y., 389.) Defendant’s liability to keep the street in repair was not confined to ordinary and gradual wear and decay, but extended to injuries by the elements, accidents and acts of a third person. (Beach v. Crain, 2 N. Y., 95; Taylor on Landlord and Tenant [6th ed.], §§ 364, 360; McIntosh v. Lown, 49 Barb., 550; Phillips v. Stevens, 16 Mass., 238; Platt on Covenants, 275; Meyrs v. Burns, 33 Barb., 405; Cook v. Champlain Trans. Co., 1 Den., 104; Brecknock Nav. Co. v. Pritchard, 6 Term. Rep., 751; Ballock v. Domonitt, 6 id., 650; Leavitt v. Fletcher, 10 Allen, 121; Yeabrook, 40 Edw., 111—116; Mayor v. These Defendants, 32 N. Y., 261-271-273 ; Hover v. Barkoof 44 id., 113, 126; McCarthy v. Syracuse, 46 id., 194, 197 ) The grant of the permit was a breach of the contract or waiver of the covenant by the city, but the discharge of a duty which did not relieve defendant from liability. (Wendell v. Mayor, etc., 4 Keyes, 266, 270.) If there had been no agreement with the city defendant would have been liable on the facts proved. (Drew v. N. R. Co., 6 Carr. & P., 754; Manley v. St. H. C. and R. Co., id., 852, 855; Lewenthal v. Mayor, etc., 61 Barb., 511; Hines v. City of Lockport, 50 N. Y., 236; 1 Roll. Abr., 368; Rex v. N. R. of Yorkshire, 5 Burr., 2,594.)</p>

<p>Appeal from order of the General Term of tlie Supreme Court, in the fourth judicial department, affirming an order of Special Term which denied a motion on the part of defendant to vacate judgment herein for irregularity.</p> <p>The irregularity complained of was that the judgment which was entered upon a decision of the court on trial at Special Term was entered before the time had elapsed prescribed by section 1228 of the Code of Civil Procedure. The decision was filed in the clerk’s office, April 20, 1874, and notice of filing served on defendant on the same day. The judgment was entered April 24th.</p> <p>When a law pro-.. vides that ah act shall be done “ after the expiration ” of a stated period from any definite event, such period must intervene before the doing of the act. (Brigham v. Place, Gen. Term, Buffalo, June, 1878; Com'l Bk. v. Ives, 2 Hill, 355, 356; Pitt v. Shew, 4 Barn. & Ald., 208; Butts v. Edwards, 2 Den., 164; Judd v. Fulton, 4 How., 298; 10 Barb., 117; Small v. Edrick, 5 Wend., 137: C. T. Road v. Haywood, 10 id., 424; Pearpoint v. Graham, 4 Wash. C. C., 232.) When an act is to be “in” or “ within” a definite period, the first day is included and the last excluded. (Ex parte Dean, 2 Cow., 605; Snyder v. Hayden, id., 521; Lester v. Garland, 15 Ves., 243; Taylor v. Cobriere, 8 How. Pr., 386; People v. N. Y. C. R. R. Co., 28 Barb., 286; Smith’s Com., § 618.) Fractions of av day are disregarded, except where a priority of a lien is material. (Judd v. Fulton, 4 How. Pr., 298; Haden v. Buddensick, 49 id., 246; 8 Barb., 384.)</p> <p>In computing the time in which judgment is to be entered under section 1228 of the New Code, the first day is excluded aud the last day included. (Code Civil Proc., § 788; Old Code, § 407; Ready Roofing Co. v. Chamberlain, 1 Abb. [N. C.], 192; Brigham v. Place, Gen. Term, Fourth Dept., June, 1878; Feelan v. Douglas, 11 How., 194; Ex parte Dean, 2 Cow., 605; Com’l. Bk. v. Ives, 2 Hill, 355; Bissell v. Bissell, 11 Barb., 96.)</p>

(Reported below, 11 Hun, 299.) The nature of the action appears in the opinion. The relation of the parties prior to the decree against plaintiff was that of husband and wife under a valid marriage. (2 R. S., *139, §§ 5, 6, art. 1, title 1, chap. 8; 5 N. Y. Stat. at Large, 400, note; Williams v. Parisien, 1 Johns. Ch., 392; Vallean v. Vallean, 6 Paige, 209; Brower v. Bower, 9 Leg. Obs., 196; Cropey v. McKinney, 30 Barb., 55; Griffin v. Banks, N. Y. G. T., 24 How.

Motion to dismiss appeal on the ground, among others, that the appeal was not taken and perfected in time. The facts appear in the opinion. The appeal from the judgment of the General Term was not perfected within the time required by law. (Code of Civil Procedure, § 1325; Code of Procedure, § 334; Kelsey v. Campbell, 14 Abb., 368.) The appeal was perfected in time.

<p>Appeal from an order of the General Term of the Supreme Court, in the second judicial department, reversing ón questionsof fact and law a judgment in favor of defendant, entered on the report of a referee and granting a now trial.</p> <p>This action was brought to recover damages for the alleged conversion of a quantity of carpets.</p> <p>The findings of the referee were to the effect that in August, 1869, the plaintiff sold to the firm of J. E. Miller & Co. (composed of James E. Miller, Dell P. Peters and Catharine Loeb), carpets to the amount of about $7,000 under an agreement that the purchasers should give their notes at two, four and six months for the price, secured by a chattel mortgage on the carpets. It was part of the agreement that the carpets should be laid down in the Glenham Hotel, by the plaintiffs. Under this agreement the carpets were delivered from time to time, and the delivery was completed on or before the 29th of October, 1869. While the delivery was progressing and before the twenty-ninth of October the plaintiff applied to J. E. Miller & Co. for and received from them three notes, viz. : On the thirtieth of September two notes of $1,500 each, and on the first of October one note of $1,500. These notes were accepted under the agreement for the sale of the carpets. Plaintiffs completed the delivery without insisting upon the delivery of the chattel mortgage or otherwise making said delivery conditional. About the fourth of December, 1869, Catharine Loeb assigned all her interest in the firm to Dell P. Peters, one of her co-partners, and on that day Miller commenced an action in the Supreme Court to wind up the partnership. On the eighth of December Peters was appointed receiver of the partnership property and the partners were enjoined from making any sale or other disposition thereof. On the same day, but after the appointment of the receiver the plaintiff Husted demanded of Miller the execution of the chattel mortgage, and presented to him for execution a mortgage drawn in his individual name as mortgagor to the plaintiff Husted as mortgagee. After consultation with counsel Miller executed the mortgage, first inserting in it a statement that it was given for a copartnership debt of the late firm of J. E. Miller & Co. contracted for the purchase of the carpets described in the mortgage, and that the debt was contracted with the firm of Husted & Carll of whom said Husted was one. As thus corrected and executed the mortgage was delivered to said plaintiff who on the tenth of December, 1869, filed it in the register’s office. It is further found that no mortgage had been demanded prior to the eighth of December. By orders made on the sixteenth, and twentieth of December the defendant was appointed receiver of the partnership property in place of Peters who was removed, and on the seventeenth of January, 1870, an order was made in said action directing the receiver to sell the copartnership property. In pursuance of this order the receiver advertised the property for sale on the twenty-fifth of January, 1870.</p> <p>On the twenty-first of January, 1870, the plaintiffs served upon the defendant a petition to the Supreme Court, alleging the appointment of the defendant as receiver and that' he had taken possession of the carpets in question, and setting forth the conditions of the sale thereof by them to the firm of J. E. Miller & Co., and alleging that the delivery of the carpets to them was completed October 29th, 1869 ; that they had demanded the mortgage, but that none had been delivered by the firm as agreed upon and no part of the price of the carpets had been paid ; that the plaintiffs were taking steps to get back the property by' reason of a failure of the conditions of sale when they were informed of the receivership ; that they had demanded the property from the receiver. The prayer of the petition was that the receiver deliver the property to the plaintiffs or that they have leave to bring an action against the receiver for claim and delivery, and generally for other relief. To this petition was attached a notice of motion to bo made thereon on the first Monday of February, 1870. .What order was made on this petition does not appear from the' papers in this case. The defendant testified and the referee found that the defendant handed the petition and notice to his counsel without reading them. The referee further found that on the day of the receiver’s sale the plaintiffs attended • and publicly demanded the goods but that notwithstanding such demand the defendant caused the goods to bo sold under" the order of sale ; also that J. E. Miller & Co. were guilty of no fraud in contracting for, or obtaining possession of ■ the goods.</p> <p>The conclusions of law of the referee were, that the delivery of the chattel mortgage was a condition upon which the plaintiffs might have insisted at the time of the delivery of the carpets, but that by delivering them and rendering a bill therefor and applying for and receiving the notes and delaying from October twenty-ninth to December eighth to demand the mortgage, and finally accepting and filing the chattel mortgage from James E. Miller, they waived the' condition upon which they might otherwise have insisted ; and that at the time of the appointment of the receiver the title to the goods was vested in^ J .-E: ■ Miller & Co. or Miller & Peters free from any right therein or lien thereon in favor of the plaintiffs, and that the complaint should be dismissed.</p> <p>One who seeks to reverse the judgment of a referee on the facts upon any particular point must procure a finding in respect thereto or show a request and refusal and exception. (Fabri v. Kalbfleisch, 52 N. Y., 28; Pratt v. Ins. Co., 55 id., 505; Holden v. Burnham, 63 id., 76; Fake v. Whipple, 39 id., 394; S. C., 39 Barb., 339; Mosher v. Hotchkiss, 3 Keyes, 161; Grant v. Morse, 22 N. Y., 323.) The goods having been delivered without any qualification or condition, express or implied at the time of the delivery, the condition of the sale was waived. (Lupin v. Marie, 6 Wend., 77; Smith v. Lynes, 5 N. Y., 41; Hammitt v. Linneman, 48 id., 399; Osborn v. Gantz, 60 id., 542.) The receipt of the promissory notes operated as a payment and a waiver of the right to demand a mortgage. (Lees v. Richardson, 2 Hilt., 172, 176.)</p> <p>Plaintiffs not having fully completed the order when the chattel mortgage was given had no right to insist upon its delivery or upon the delivery of any notes. (Husted v. Craig, 36 N. Y., 221, 223; Baker v. Higgins, 21 id., 397.) Defendant holds no better position in this action than Miller & Co. could hold. (Smyth v. Lynes, 1 Seld., 41; Hammitt v. Linneman, 48 N. Y., 399; Barnard v. Campbell, 58 id., 73; Palmer v. Kelly, 56 id., 637; Kinney v. Kiernan, 49 id., 164.)</p>

(Reported below, 11 J. & S., 1.) This action was brought against defendant, a warehouseman, for an alleged neglect and refusal to deliver goods delivered to him as such. The answer alleged, in substance, that the goods were stolen from defendant’s Avarehouse without negligence or carelessness on his part. The facts appear sufficiently in the opinion.

The particulars of the order and the material facts appear sufficiently in the opinion. The injunction would not affect the rights of persons not parties to the action, or .the right of the attorneys for such persons to advise them as to their rights or assist them to recover them. (People v. Randall, 73 N. Y., 416.) The facts alleged m the affidavit upon which the order was granted were fully met and controverted by the affidavits read in opposition.

(Reported below, 18 Hun, 187.) This action was brought to recover damages for the alleged negligent killing of plaintiff’s intestate. Memorandum of decision on former appeal.

The nature of the action and the facts are set forth sufficiently in the opinion. If the sale was made upon the statement of accounts by Brown his statement became an account stated and the parties bound thereby. (L. R., 4 Ex. Cas., 189.) Gross negligence is presumed when a man is ignorant of his own affairs. (1 Kerr on Mistake, 405, 406.) The adjustment was final and the payment voluntary and paid under a claim of right.

(Reported below, 10 Hun, 372.) This action was brought upon a promissory note claimed to have been made and delivered by defendants’ testator to the plaintiff.

The nature of the action and the facts are sufficiently set forth in the opinion. The averments of the complaint wore sufficient and showed that plaintiff had a legal capacity to sue. (Rockwell v. Merwin, 45 N. Y., 166; Manly v. Rassigna, 6 N. Y. W'kly Dig., 300.) Plaintiff had such an estate in the property sought to.be partitioned as enabled him to maintain partition.

<p>.Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, entered upon an order affirming an order denying a motion for a new trial, and directing judgment on a verdict. (Reported, below, 12 JEIun, 209.)</p> <p>This action was brought against defendants as trustees of ‘ ‘ Gowanda Union Free School District No. 1 ” for alleged negligence in suffering the floor of one of the recitation rooms in the school-house in said district to become and remain out of repair in consequence of which plaintiff who was employed as a teacher in said school, stepped through a hole in the floor and was injured.</p> <p>The said school district was organized under the provisions of the act of 1864 relating to public instruction which authorizes the establishment of union free schools. (Title 9, chap. 555, Laws of 1864.)</p> <p>The facts appear sufficiently in the opinion.</p> <p>This action could not be maintained against the defendants individually. (Laws 1864, chap. 555, § 13.) The court erred .in refusing to charge that if plaintiff was so engrossed in performing her duties that her attention was diverted at the time from the existence of the hole, this would excuse her from heeding the fact and avoiding the accident. (Wilcox v. R. W. and O. R. R. Co., 39 N. Y., 358; Baxter v. Troy, etc., R. R. Co., 41 id., 502; Nicholson v. Erie R. Co., id., 525; Barker v. Savage, 45 id., 191; Gibson v. Erie R. Co., 63 id., 449; Morrison v. The Same, 56 id., 302; Mitchell v. N. Y. C. and H. R. R. R. Co., 64 id., 655; Gray v. Second Ave. R. R. Co., 65 id., 561; Cleveland v. N. J. Steamboat Co., 68 id., 306.)</p> <p>Defendants were liable as trustees for injuries resulting from a failure to keep the school-house in repair. (6 Stat. at Large, 304, 335, 337, 348, 350, 351, 353, 354; 23 Barb., 176; 13 Wend., 28; People v. Utica Ins. Co., 15 J. R., 358; 2 id., 109; 5 Wend., 547; 9 id., 571; 19 id., 37; 24 id., 345; 1 Hill, 545.) An action on the case for nonfeasance was the proper remedy. (6 N. Y. Stat., 337, § 50; id., 361, 362, §§ 6-10; 14 J. R., 432; 18 id., 258, 284, 285; 6 Cow., 342.) The injury having resulted from the defendants’ wrong and they alone being responsible there could be no plea of non-joinder of defendants. (Col. on Part., 640, § 727; id., 644, § 735; 2 Chitty Pl., 1; 2 Bacon’s Abr., 11, 340; Graham’s Pr., 393; 54 N. Y., 657.) Defendants for wrongs or liabilities incurred by their negligence wore not the agents of the district or acting under authority. (23 Barb., 176; 7 Wend., 181.) The body of the- complaint set forth sufficient to show a right of recovery irrespective of the title. (7 How., 25; 3 Keyes, 497.) The. court, if necessary to sustain the judgment, could amend the name given to defendants in the title. (Code, § 73; 20 N. Y., 357 ; 32 Barb., 480; 24 Wend., 345.) As between the trustees and the district it made no difference by what name they were sued. (10 How., 143, 468.) The statute providing for suits against public officers, including trustees of school districts and the recovery of judgment against them, is applicable to this case. (2 N. Y. Stat. at Large, 494, 495, §§ 90, 92, 96, 108; 6 id., 353, 354, § 13.) Defendants were liable in a private action for the injuries sustained by plaintiff through their neglect of a duty imposed by law. (44 N. Y., 113; Robinson v. Chamberlin, 34 id., 389, 390; Hicks v. Dorn, 3 Hand, 47; Fulton F. Ins. Co. v. Baldwin, 37 N. Y., 648; Adsit v. Brady, 4 Hill, 630; Smith v. Wright, 27 Barb., 621; 24 id., 170; Clark v. Miller, 47 id., 38; Wendell v. Mayor, etc., 39 id., 335; 4 Keyes, 261; Mayor v. Farze, 3 Hill, 612; Wilson v. Mayor, 1 Den., 595; Roch. Lead Co. v. Rochester, 3 Comst., 469; Hudson v. Mayor, etc., 5 Seld., 163; 13 Hun, 427; 46 N. Y., 194; Clark v. Miller, 54 id., 528; 38 Barb., 163; 1 Seld., 48; 6 Hill, 240; 17 Wend., 250; 36 How., 481; 40 Barb., 256; 3 Duer, 241; 2 Robt., 268; 21 N. Y., 124; 50 id., 679; 45 id., 129; 54 id., 230; 29 id., 383; 35 id., 28; 59 id., 28; 54 id., 468; 1 Daley, 178; 24 How., 16; 33 Barb., 16; 33 id., 414; 49 id., 580; 3 Lans., 433; 29 N. Y., 383, 390: 35 id., 939; 44 id., 113; 3 Kern., 526, 533; 15 id., 415; 39 How., 418, 419; 24 Wend., 345; 1 N. Y. Stat., 556.) Though plaintiff knew of the hole her mind being intent upon her duties she was not chargeable with neglect. (Slawson v. Albany R. Co., 60 N. Y., 606.)</p>

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, affirming an order of Special Term quashing and setting aside a writ of alternative mandamus issued herein.</p> <p>The writ set forth the recovery of a judgment” by the relator against Morris Woodruff as sole commissioner of highways of said town of Little Valley, and the return of an execution thereon unsatisfied, a presentation of a claim for said judgment to the board of town auditors with a request that it be audited and allowed as a town charge, and a refusal of the board to audit and allow the same. It appeared that the judgment was recovered for injuries sustained by plaintiff through the alleged neglect of said commissioner to keep a bridge forming part of a highway in said town in repair, although having funds in his hands for that purpose.</p> <p>The judgment against Woodruff was a town charge. (R. S., part 1, chap. 2, title 5, § 8; R. S., part 3, chap. 8, title 4, art. 4, § 108.) Being a town charge it was the duty of defendant to audit and allow it. (Laws 1840, chap. 305; 3 Stat. at Large [Edms. ed.], 302.) Upon defendant’s refusal to discharge its duty the relator was entitled to enforce its performance by mandamus. (People v. Suprs. of Columbia, 10 Wend., 363; Cornell v. Guilford, 1 Den., 510; Bell v. Esopus, 49 Barb., 506; People v. Westford, 53 id., 555; People v. Hempstead, 4 Hun, 94; Brady v. Suprs., 6 Seld., 260; 1 R. S. [Edms. ed.], 313, § 3; 2 id., 497, § 108; Hover v. Barkoof 44 N. Y., 113.)</p> <p>The commissioners liability was personal and not in a representative capacity. (Lamont v. Haight, 44 How., 1; 44 N Y., 113; 34 id., 389, 390; 37 id., 648; 46 id., 194; 54 id., 528; 3 Hand, 47; 4 Hill, 630; 47 Barb., 38; 13 Hun, 427.) 11 the town were liable the suit should have been direct against the town and process served on the supervisor. (1 R. S., 329, §§ 1, 2, 3.) No action -will lie against a town for neglect to repair a bridge. (8 Barb., 645; 6 Hill, 463; 1 id., 545; 11 N. Y., 392; 1 Den., 510.) Corporations are not liable for unauthorized acts of their agents. (A. & A. on Corp., 250, 330; 2 Barb., 104; 3 Seld., 364; 7 Wend., 446; 1 Smith, 445; 15 N. Y., 445, 468.) Defendant could not audit the judgment as a town charge. (2 N. Y. Stat., 495, 497, §§ 92, 95, 96, 108; 1 id., 328; id., 331, § 2; 66 Barb., 103.) Plaintiff was bound to allege in the complaint sufficient to make a cause of action against defendant individually for negligence. (15 East, 384; Nicholson v. Mounsey, 17 Wend., 250.)</p>

This action was brought to recover damages for injurie» alleged to have been sustained by plaintiff at a railroad crossing, because of negligence on the part of defendant in omitting to give the statutory warnings from the engine of an approaching train. The tacts appear sufficiently in the opinion.

It appeared that the common council passed an ordinance for the improvements specified. The commissioner of public works received fourteen bids for the work. He accepted the bid of one Keyes who offered to perform the excavation, filling and flagging for nothing. The prices for the curbing and gutteiing were about four times those of the other bidders. The largest portion of the expense of the improvement was the flagging. The contract was entered into and the work done.

This action was brought to recover damages for the death of Christopher B. Cordell, plaintiff’s intestate, alleged to have been caused by defendant’s negligence. The case is reported on former appeals in 70 N. Y., 119, and 64 N. Y., 535. The deceased was killed by a locomotive attached to an emigrant train going east on defendant’s road, while he was attempting to cross its tracks at a farm crossing, which had to some extent been used by the public as a highway.

<p>Under and by virtue of the provision of the general railroad act (§ 47, chap. 140, Laws of 1850, as amended hy sect. 1, chap. 775, Laws of 1867), which declares that if any corporation organized under it shall not, within five years after its articles of association are filed and recorded, begin the construction of its road, etc), “its corporate existence and powers shall ceasea corporation failing to comply with said condition becomes by reason thereof extinct; and no action or judicial proceeding is needed to declare or complete a forfeiture of its charter and loss of corporate powers.</p> <p>The act of 1878 (chap. 206, Laws of 1878), purporting to amend the act of 1874 (chap. 575, Laws of 1874), in relation to the Brooklyn, Winfield and Newtown Railway Company, by extending the time in which said company is required to finish and put in operation its road to five years from the passage of the act, is violative of the constitutional provision prohibiting the Legislature from passing “ a private or local bill, * * * granting to any corporation * * * • the right to lay down railroad tracks” (Const., art. 8, § 18), and is void.</p> <p>The act of 1878 was not simply a waiver of a forfeiture, but inasmuch as at the time of its passage the said corporation had ceased to exist, because of failure to comply with said condition above mentioned, it was the creation of a new corporation, an attempt to grant a special charter to construct and operate a railroad, and so came within the constitutional prohibition.</p>

<p>A judgment for plaintiff will not be reversed on appeal because of an omission to aver in the complaint or to prove upon the trial a fact essential to the plaintiff’s case, unless the defect was pointed out and is reached by a proper exception taken on the trial.</p> <p>In an action by the assignee of a mortgage against a grantee of the mortgaged premises upon a covenant in his deed to pay the mortgage, the complaint alleged the execution of the mortgage by P., defendant’s grantor, that it was given to secure a part of the purchase-price of the</p> <p>' mortgaged premises, and that at the time it was executed P. was the owner in fee. These facts were admitted in the answer. Held, that in the absence of a demurrer, or of a motion on the part of defendant to make the complaint more definite and certain, or of any specification of any defect on the trial the complaint might be construed, for the purpose of upholding the judgment, as inferentially averring that the mortgage was given for a debt owing by P., and for which he was personally liable.</p> <p>At the close of the evidence defendant’s counsel moved for judgment without specifying any grounds, or suggesting any point wherein plaintiff’s case was defective. The motion was denied and exception taken. Held, that the exception was insufficient, that the defect should have been specified.</p>

Appeals by Thomas J. Bari-, receiver, from two orders of the General Term of the Superior Court of the city of New York, affirming orders of Special Term. (Reported below, 11 J. & S., 126, 344.) This was an action between partners, the parties compos- ■ ing the firm of A. Bininger & Co. Thomas J. Barr, the appellant, was appointed receiver of the partnership assets.

<p>Where a mortgagee of premises in the city of New York, who took his mortgage before the completion of a local improvement and an assessment upon the premises therefor, foreclosed his mortgage, and the judg-. inent of. sale directed the referee appointed to sell, before paying the mortgage,to deduct from the avails of sale the amount of any lien on the premises for assessments; and where on sale the premises were struck •off to the mortgagee for a sum less than ' the assessment and the amount of the mortgage debt, held, that in the absence of proof that the mortgagor was personally liable for the deficiency, or in case of such liability that by a resort to it the mortgagee would have been successful in obtaining payment of his debt, he was a party aggrieved within the meaning of the act of 1858 (§ 1, chap. 338, Laws of 1858) “ in relation to frauds in assessments for local improvements ” in said city, and could move to vacate the assessment. The only proof of the value of the premises was the price at which they were sold and the assessed value; both were much less than the amount of ..the mortgage and the assessment. Held, that it could not be assumed that the premises were worth more than that amount.</p> <p>Where, for what is practically and in reality one improvement, two separate apportionments and assessments are made, the aggregate amount of which is more than half of the assessed value of the premises, though such assessments are confirmed at different times, the provision of the act of 1840 (j 7, chap. 326, Laws of 1840) forbidding assessments “in any one case,” exceeding half the assessed value applies, and there is substantial error in the assessments.</p> <p>The paving of a street or the adoption of a peculiar kind of pavement, is not necessarily so disconnected from the grading, regulating and setting of curb-stones and flagging as to constitute a different and separate improvement.</p> <p>A resolution of the common council was adopted and approved in Aprilf 1871, directing that a portion of a certain street be regulated and graded, curb and gutters set, and side-walks flagged under the direction of the commissioner of public works. About a year after, two resolutions were adopted and approved, one for setting and resetting curb and gutter stones and flagging and reflagging side-walks on the street, another for paving the street with Belgian or granite block pavement and for laying cross-walks; the portion of the street specified in the last two resolutions was not so great as in the first. A resolution was passed by the department of public parks for the regulating, grading, sewering, paving and improving the street, specifying the same portion as in the first resolution of the common council. Two estimates were made, one for regulating, grading, setting curb-stones and flagging, the other for a “Tilford McAdam roadway.” The whole work was done under the resolution of the department of public works. Two assessments were made for the . work,upon certain lots, the aggregate of which was more than half of the value of the lots as valued by the ward assessors. In proceedings to vacate the assessments, held, that the work was in fact but one improvement for which there should have been but one assessment; but the fact that the work was not all done at once did not necessarily determine that it was of two distinct improvements, nor did the fact that there were different kinds of pavement on different parts of the street; and that, therefore, the assessments were to some extent at least illegal.</p> <p>Also, held, that the court could not take judicial notice of a custom in the city of New York in improving streets, first to regulate and grade, and then to pave,as separate and distinct works; that if such custom exists it must be proved.</p>

The nature of the action and the facts are set forth sufficiently in the opinion. Public officers may be restrained by injunction from the violation of law to the injury of individual rights.

<p>Appeal from judgment of the General Term of the City Court of Brooklyn in favor of plaintiff, entered upon an order reversing a judgment in favor of defendant, entered upon a decision of the court on trial without a jury, and • directing a judgment for plaintiff.</p> <p>The complaint alleged and the court found, in substance, ■the following facts:</p> <p>Defendant, owning land fronting on Lexington avenue, in the city of Brooklyn, entered into a contract with one -James P. Howard for the paving of said street in front of said land. Howard was indebted to the plaintiff in the sum ■of $400, as security for which debt said plaintiff held a horse belonging to said Howard. In order to obtain possession ■of said horse Howard proposed to give plaintiff an order on the defendant for said sum, to be paid out of moneys to become due Howard on said contract, and plaintiff agreed to deliver up said horse provided the defendant would agree to accept said order. Defendant thereupon agreed verbally with plaintiff to accept the order, and in consideration of said agreement the plaintiff delivered up the horse to Howard upon receiving from Howard a written order in the words and figures following:</p> <p>“ Brooklyn, 1ST. Y., April 23, 1874.</p> <p>“ Mr. Richard De Mill :</p> <p>“ Please pay to F. Erichs $400, and charge the same to my account of grading and paving Lexington avenue, between Patchen and Broadway, as per contract.</p> <p>“ $400. JAMES P. HOWARD.”</p> <p>Plaintiff, after the receipt of the order, and before the delivery of said horse, exhibited the order to the defendant and informed him that Howard wanted his horse, and he, plaintiff, was unwilling to give him up until he was sure the order was good ; defendant read the order and said it was all right, whereupon said plaintiff delivered up «said horse to Howard, and said order was afterwards, in May, 1874, delivered to defendant, who retained it until February, 1875, when he returned the same to the plaintiff, but said defendant did not accept said order in writing or make any written agreement to pay the same. Said contract was afterwards, and about December 10, 1874, completed by Howard, and more than $400 became due thereon from defendant, and thereupon said plaintiff demanded payment of said order from defendant, which was refused. The answer was a general denial.</p> <p>Upon the facts so found the court, as matter of law, held that plaintiff was not entitled to recover.</p> <p>The order in question was a bill of exchange (Shaver v. W. U. Tel. Co., 57 N. Y., 463, 470; Kelly v. Mayor of Brooklyn, 4 Hill, 265; Hoyt v. Lynch, 2 Sandf., 331.) An ordinary draft or bill of exchange unaccepted and not made payable out of a particular fund does not operate as an assignment or appropriation of funds of the drawer which may be in the hands of the drawee. (Mandeville v. Welch, 5 Wheat., 286; Harris v. Clark, 3 N. Y., 93; Cowperwait v. Sheffield, id., 243; Winter v. Drury, 5 id., 525; Chapman v. White, 6 id., 412; Duffy. Pope, 5 Hill, 413; aff’d, 1 Hill, 577.) The alleged agreement to accept the order being Yerbal, was void under the statute of frauds. (1 R. S., 768, §§ 6-10.) The exception in section ten does not apply to a payee of a draft but only to a person -who has drawn or negotiated it. (Blackstone v. Dudley, 5 Duer, 373; N. Y. and V. State Stock Bk. v. Gibson, id., 574.) If the judgment entered on the trial was erroneous the General Term should have ordered a new trial. (Astor v. L’Amoreux, 8 N. Y., 107; Griffin v. Marguard, 17 id., 28; Edmonston v. McLeod, 16 id., 545.)</p> <p>The acceptance of the order and its retention by defendant operated as a valid assignment of so much of the fund and rendered him liable therefor. (Field v. Mayor, etc., 6 N. Y., 179.) The order was a specific order on a particular fund. (Lowery v. Stewart, 25 N. Y., 234; Morton v. Naylor, 1 Hill, 583; Parker v. City of Syracuse, 37 N. Y., 376.) There was a consideration for the entire agreement sufficient for defendant’s promise of a new and distinct consideration independent of the order. (Harrison v. Sawtel, 10 J. R., 242; McNemony v. Ferrers, 3 id., 82-83.) The agreement with defendant constituted a new, distinct and original consideration between the parties. (Leonard v. Vredenburgh, 8 J. R., 29-31; Myers v. Morse, 15 id., 425; Sanders v. Gillespie, 59 N. Y., 252.) The order was an equitable assignment of the $400, irrevocable as soon as the parties acted upon it. (Weston v. Barker, 12 J. R., 276; Canfield v. Munger, id., 346; 2 Story Eq. Jur., §§ 761—762; Munger v. Shannon, 61 N. Y., 257-259.) A promise arising out of some new consideration of benefit to the promissor, or loss or harm to the promisee, is not within the statute of frauds. (Farley v. Cleveland, 4 Cow., 432; 9 id., 639; Barker v. Bucklin, 2 Denio, 45; Hudson C. C. v. Westchester Bank, 4 id., 27; Lawrence v. Fox, 20 N. Y., 268.) Defendant was bound as soon as the money became due to Howard to pay it over to plaintiff. (Quinn v. Hanford, 1 Hill, 85; Luff v. Pope, 5 id., 417.)</p>

<p>Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term, denying a motion on the part of plaintiff for leave to discontinue the action on payment of costs. (Reported below, 11 J. & S., 373.)</p> <p>The facts appear sufficiently in the opinion.</p> <p>Plaintiff had a right to discontinue his suit at any time before judgment. (1 Abb., 46; 18 Barb., 595; 13 How., 258; 25 id., 500; 7 Abb. [N. S.], 37; 11 Hun, 286; 10 id., 120.)</p> <p>Plaintiff was not entitled as matter of right to discontinue his suit on payment of costs. (Young v. Bush, 36 How. Pr., 240-242; Wilder v. Boynton, 66 Barb., 547; De Barante v. Deyermand, 41 N. Y., 355; Cockle v. Underwood, 3 Duer, 676, 678, 680; Leslie v. Leslie, 10 Abb. Pr. [N. S.], 64-67; Campbell v. Campbell, 12 Hun, 636; Livermore v. Bainbridge, 43 How. Pr., 272-274; Tubbs v. Hall, 12 Abb. Pr. [N. S.], 237; Van Allen v. Schermerhorn, 14 How. Pr., 287; Geenia v. Keat, 66 Barb., 245; Wilson v. Wheeler, 6 How. Pr., 49.) If the defendant is not entitled as matter of right to discontinue on payment of costs then the order refusing leave to do so is not appealable. (Code of Civil Procedure, § 1347.) The discretion of the court as to the terms was properly exercised. (Wilson v. Wheeler, 6 How. Pr., 49-51; 3 R. S. [6th ed.], 576, § 34 [38] ; id., 577, § 37 [41] ; 2 Edms. ed., 318, § 38; id, 319, § 41.)</p>

This action was upon a lease under seal of certain premises in New York, which lease was executed by “ J. Eomaine Brown, agent,” as lessor and by defendant as lessee. The facts appear sufficiently in the opinion. Plaintiffs, being the principals of Brown, can sue upon the agreement made in his, Brown’s name.

The court erred in finding that as this was not a case of repavement and no fraud was alleged it was not within the provisions of chapter 313 of Laws of 1874. (In re Second Ave. M. E. Church, 66 N. Y., 395; In re Zborowski, 68 id., 88; In re Rhinelander, id., 105.) The performance of the work by day’s work was a substantial error under chapter 312, Laws of 1874.

Appeals from judgments of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of defendants, entered upon decisions of the court on trial at Special Term. These actions were brought to have certain bonds issued by plaintiff under the authority of chapter 314, Laws of 1869, as amended by chapter 152, Laws of 1870, delivered up and canceled and to restrain defendants from transferring them.

This action, was brought to set aside two lis pendens and a judgment recovered by defendants as an alleged cloud on plaintiff’s title to the premises described therein. The complaint alleged, and the court found, in substance, that the premises in question were conveyed to Gertrude W. Sharkey, in January, 1866.

(Reported below, 14 Hun, 420.) This action was upon an account; plaintiff recovered in the action $21.31. He claimed costs for the reason that he originally commenced his action in justice’s court, which Avas discontinued on motion of defendant, on the round that the amount involved was over $400.

Bounce, as assignee of the cause of action herein, to pay defendant’s costs. 0 This action was brought to enforce the collection of four judgments held by plaintiff against defendant York, out of certain property alleged to have been transferred to the other defendants in fraud of the creditors óf said York, and to be held by them for his benefit. The further facts appear in the opinion.

(Reported below, 15 Hun, 93.) The facts appear sufficiently in the opinion. The plaintiff having elected to follow the remedy on contract waived the tort and cannot maintain this action. (Brown v. Littlefield, 1 Wend., 398; 11 id., 467; Morris v. Rexford, 18 N. Y., 552; Kinney v. Kiernan, 2 Lans., 492; Suprs. Liv. Co. v. White, 30 Barb., 72.) The decrees of the surrogate were merged in and extinguished by the j udgments obtained upon them.

• Appear from order of the General Term of the Court of Common Pleas, of the city and county of New York, reversing an order of Special Term, which granted a motion upon the part of Gustave L. Cohn, a subsequent attachment creditor, to modify an attachment issued herein by declaring his attachment to be a prior lien. Plaintiff’s attachment was issued upon the ground that defendant was a 11011-resident. The further material facts appear in the opinion.

The nature of the judgment and the facts appear sufficiently hi the opinion. The offence is a misdemeanor and as such was, if imprisonment constituted the judgment, to be suffered in the county jail. (3 R. S. [Bank's ed.], 980; 2 Gen’l Stat., 779.) The power to create crimes and to fix the punishment therefor was vested solely in the Legislature and not limited by the Constitution.

<p>It seems, that where a broker to sell is at the same time the broker to buy, the fact of the double ag-ency, if unknown to the principals, is a breach of his implied contract with each: he cannot, in such case, recover a compensation for his services; and this, irrespective of the consideration whether the sale made was or was not advantageous to the party from whom the compensation is claimed.</p> <p>In an action, however, by the broker against one of his principals, the double employment and want of knowledge .on the part of defendant hould be pleaded; at least the question should be raised in some form ' on the trial; it is too late to raise it the first time on appeal.</p> <p>Plaintiff’s complaint alleged his employment as broker by defendant, to sell, the rendition of services resulting in a sale, and claimed to recover the usual broker’s commission. The answer was a general denial. The court, after a statement of the issues, charged, in substance, that if the.jury found that plaintiff' was employed, and that whatever services he rendered were rendered under the employment, he was entitled to recover the usual commissions. Held, that an exception to this charge did not present the question as to a double employment; that the charg-e must be construed as referring to the questions presented and litigated on the trial, i. e., the employment and the services; that, as so construed, it was not erroneous.</p>

This action was brought to recover the amount of an indebtedness of the firm of Ward & McVicker to plaintiff, upon the ground of an alleged promise on the part of defendant to pay the same. The facts appear sufficiently in the opinion. The promise proved and found by the jury is not within the statute of frauds. (2 N. Y. Stat. at Large, 140, § 2, sub. 2; Leonard v. Vredenburgh, 8 J. R., 29; Farley v. Cleveland, 4 Cow., 432; Throop on Verb.

This action was brought to recover damages for the alleged conversion of a quantity of lumber.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was upon a promissory note for $500, made by defendants Skinkle & Howlet, and indorsed by defendant Tifft, for their accommodation. The answer set up a payment of $275.</p> <p>The facts appear sufficiently in the opinion.</p> <p>It was error to exclude the evidence offered by defendant to show that the payment of $275, made in June, 1873, was raised by the use of appellant’s name for the express purpose of applying it on the note in suit in discharge of his liability thereon. (Stone v. Seymour, 15 Wend., 19, 29; Story’s Eq. Jur., § 59 g; 12 S. & R, 305.) A debtor cannot appropriate a payment so as to affect the relative rights of the sureties. (Porter v. Stanley, 47 Maine, 515; Postmaster-General v. Norval, Gilpin, 106; Price v. Webster, 30 Ga., 802; Bridenbecker v. Lowel, 32 Barb., 12, 22, 23; Field v. Hollen, 6 Cranch, 27; Stone v. Seymour, 15 Wend., 19; Sawyer v. Tappan, 14 N. H., 352, 356; Thompson v. Phelan, 22 id., 330 [11 F.], 339; Merrimac Co. Bank v. Brown, 12 N. Y., 321; Wardel v. Howel, 5 Wend., 170; Farrington v. Frankfort Bk., 31 Barb., 173; Stalker v. McDonald, 6 Hill, 93; Francia v. Joseph, 3 Edw. Ch. Rep., 193; Alcott v. Rathbone, 6 Wend., 490; Rose v. Brotherton, 10 id., 86.) Plaintiff had sufficient notice to put him on inquiry as to defendant’s equities. (Brown v. Taber, 5 Wend., 566; Williamson v. Brown, 15 N. Y., 354, 357, 358; Hawly v. Cramer, 4 Cow., 717; Reed v. Gannon, 50 N. Y., 345, 349, 350; Baker v. Bliss, 39 id., 70; Farrington v. Frankfort Bk., 31 Barb., 194.)</p> <p>The evidence offered by defendant as to the source and purpose of the payment of June, 1873, would not be material or- competent unless it included evidence of notice to plaintiff. (Reed v. Boardman, 20 Pick., 441; Shepard v. Steele, 43 N. Y., 52; Pattison v. Hull, 9 Cow., 747; Davis v. Morewood, 10 Barb., 183; Shipley v. Bowery Nat’l Bk., 59 N. Y., 485; Marsh v. Oneida Cent. Bank, 34 Barb., 298.) Sureties for debts are bound by the same rules as to the application of payments which apply to their principals. (Allen v. Culver, 3 Den., 285; Stone v. Seymour, 15 Wend., 20.)</p>

(Reported below, 12 Hun, 231.) This action was brought upon a contract for the sale of a steam tug. The facts material to the point discussed appear sufficiently in the opinion. The defendant could not be rendered incompetent to testify by proof of a record of conviction of a felony in another State.

This action ivas for assault and battery, alleged to have been committed by Hollis Bruce, defendant’s testator, who ivas the original defendant; he died after judgment and the present defendant was substituted. Plaintiff’s evidence was to the effect that he had a right of way from lands of his own over defendant’s land to a highway, subject to gates, which right of way had been used for over sixty years.

(Reported below, 11 Hun, 29.) The facts appear sufficiently in the opinion. Ho error against the party not appealing could be passed upon by the appellate court. (N. Y. G. L. and Bk'g Co. v. Dudley, 8 Paige, 452; Townsend v. Graves, 3 id., 453; Bell v. Halford, 1 Duer, 58; Rooney v. Second ave. R. R. Co., 18 N. Y., 371; Kelsey v. Western, 2 id., 200; Robertson v. Bullion, 11 id., 243, 244; 4 J. R., 536, 582, 602; In re Comrs. of Cent.

■ Error to the General Term of the Supreme Court, in the third judicial department, to review order reversing a judgment of the Court of Oyer and Terminer in and for the county of Washington, entered upon a verdict convicting defendant in error of the crime of forgery in the third degree.

The nature of the indictment and the facts are set forth in the opinion. The indictment was defective because it charged offences of different grades and calling for a different punishment in several counts. (Wharton Cr. Law [last ed.], § 418; Com. v. Carey, 103 Mass., 214; U. S. v. Davenport, 1 Deady, 264.) The counts in the indictment were properly joined, and the verdict of “ guilty as charged ” was proper in form. (People v. Phelps, 13 Penn. St., 634; 1 Whar. Cr.

This was a reference, under the statute, of a claim for moneys alleged to have been collected by defendant’s testator for the use and benefit of plaintiff’s testatrix. On June 11, 1864, The Equitable Life Assurance Society of the United States, issued a policy upon the fife of Edward A. Hoppoek for $10,000, payable to his sisters Emma, plaintiff’s testatrix, and Elizabeth Hoppoek, and intended by him as a gift to them.

The order of General Term vacated the judgment, directed that the first, second and third counts in the complaint be stricken out, and that there be a new trial of the issues upon the fourth and fifth counts. (Reported below, 14 Hun, 540.) The facts appear sufficiently in the opinion. Each publication of the libel was a distinct cause of action entitling plaintiff to distinct damages.

(Reported below, 10 J. & S., 336.) This action was brought to recover damages for a breach of an alleged contract on the part of defendant to exhibit plaintiff’s goods in its exhibition building at its forty-third annual exhibition. Defendant provided blank applications for space, one of which was filled up and presented by plaintiff, and the stipulated entrance fee paid and received by defendant.

(Reported below,' 9 Hun, 543.) This action was brought by plaintiffs as assignees in bankruptcy of the firm of Campbell & Shaw to set aside and •have canceled and declared void, a mortgage executed by defendant Campbell to defendant Northrup. The facts appear sufficiently in the opinion. The evidence was sufficient to warrant the judge in finding the fact stated in his decision. (U. S. R. S. §§ 5021, 5128; Bankrupt Act, §§ 35, 39.) The mortgage executed by Campbell was void.

(Reported below, 12 Hun, 247.) This action was brought to foreclose a mortgage. The facts appear sufficiently in the opinion. The answer constituted a counter-claim under section 150 of the Code.

(Reported below, 10 Hun, 468.) This action was brought upon a promissory note made and executed by the firm of “Bench Bros. & Co.,” and indosed by defendant Lewis. Lewis alone answered. The material portions of his answer are set forth in the opinion. It was conceded upon the trial that Lewis was an accommodation indorser without consideration. Lewis offered to prove the facts set up in his answer.

This action was brought by plaintiff as a taxpayer of the town of Cherry Yalley on behalf of himself and other taxpayers against the collector, supervisor and railroad commissioners of the town, to restrain the collector from collecting a tax for the payment of certain bonds issued by the commissioners to pay for stock in the “ Cherry Yalley aud Mohawk River Railroad Company.” The further facts appear sufficiently in the opinion.

It appeared that the appellant Avas employed by Alonzo Megarge to procure a divorce, and it was alleged by Mrs. Megarge that she was induced by representations on the part of Gale, to go to a hotel Avith him, where he engaged a room, entering in the registry the name “James H. BaldAvin and wife,” and by means of deception and coercion kept her in the room with him all night; he had employed agents to watch, and upon their testimony succeeded in procuring a divorce.

court on trial, without a jury. (Koported below, 12 Hun, 398.) The nature of the action and the facts are set forth sufficiently in the opinion. Defendant is estopped by the recital of the judgment, execution and levy in the stipulation from denying their validity.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term which overruled exceptions to and confirmed a referee’s report herein. (Reported below, 13 Hun, 506.)</p> <p>This action was brought by plaintiff as creditor of the firm of Hoyt, Spragues & Co., in its own behalf and in behalf of other creditors, against the receiver of said firm appointed in a former action, and against the members of said firm, to reach the assets of said firm and have them applied in payment of its debts. By the judgment therein said firm was. declared insolvent, and it was adjudged that the assets in the hands of the receiver constituted a fund out of -which the creditors upon proof of their claims were entitled to be paid pro rata, according to their respective rights, and a referee, was appointed to take proof of the claims of creditors. Five savings banks presented to the referee claims upon a bond executed by one Josiah Chapin, as principal and by all of the members of said firm of Hoyt, Spragues & Co., individually as sureties.</p> <p>The material facts are as follows :</p> <p>In April, 1873, the Riverside Mills and the City Woolen Company owed the firm of Hoyt, Spragues & Co. about a $1,000,000, which was secured by the personal guaranty of said Josiah Chapin." To reduce this debt, Chapin, on the 4th of April, 1873, borrowed $600,000, from the five savings banks. Chapin gave his individual notes, payable in one year, to the order of each of the banks, for the amount loaned by it. As security for the payment of the loans Chapin executed to trustees a mortgage upon certain real estate. On the same date, and as further security, the bond before mentioned was made, which -was conditioned in substance to pay so much of the loan as should not be paid by the real estate security. The bond contains the following general covenant:</p> <p>“ For which payment, well and truly to be made, we bind ourselves, and each of us, and any six, five, four, three or two of us, our and each of our and any six, five, four, three or two of our heirs, executors and administrators, jointly, severally and respectively, firmly by these presents.”</p> <p>Of the sum loaned, said firm received, all except the sum of $55,000, and six months interest, which were retained by the banks.</p> <p>Albert S. Gallup one of said firm, who was examined before the referee by the counsel for the savings banks, testified, in substance, under objection of the counsel for the receiver, that he negotiated the loan to Chapin ; that he was acting for and as a member of the firm of Hoyt, Spragues & Co., and that the loan was negotiated for the purpose of enabling Josiah Chapin to reduce the indebtedness of the Riverside Mills and City Woolen Company on said company's books.</p> <p>Chapin made default in the payment of his notes. His real estate was sold and the proceeds applied in payment of the loan and the claim was for the residue.</p> <p>It cannot be claimed that a partnership debt created by a contract is not in the name of a firm or made by a firm as the real contracting party. (Parsons on Part., 126-484; Crouch v. Bowman, 3 Humph [Tenn.], 209; Le Roy v. Johnson, 2 Peters, 186-197; Agawan Bk. v. Morris, 4 Cush., 99; Ex parte Stone, L. R. & Ch. App., 914; Turner v. Jaycox, 40 N. Y., 470; Bevan v. Lewis, 1 Simmons, 376; Faith v. Richmond, 11 A. & E., 339.) The signing of the names of all the partners, individually to the contract of suretyship did not constitute a signing of the firm name. (Parsons on Part., 178; Gates v. Graham, 122 Wend., 53; Van Deusen v. Blum, 18 Pick., 229.) Although the contract of suretyship was the joint obligation of all the members of the firm the firm was not. the real contracting party and was not bound by it. (Parsons on Part., 346; Brewster v. Hammat, 4 Conn., 540; Robertson v. Smith, 18 J. R., 459-476; Gay v. Johnson, 45 N. H., 587; Mason v. Eldred, 6 Wall., 261 and 235; United States v. Price, 9 How. [U. S.], 83; Risley v. Brown, 67 N. Y., 160; Turner v. Jaycox, 40 id., 410, 476; Forsyth v. Woods, 11 Wall., 484-486; In re Roddin & Hamilton, 6 Bissell, 377; In re Webb & Johnson, 2 Bnk. Reg., 614; In re Bacyrus Machine Co., 5 id., 303; Emily v. Lye, 15 East, 7; Jaques v. Margnand, 6 Cow., 497; Nat. Bk. Selma v. Thomas, 47 N. Y., 15-20; Nat. Bk. of Chemung v. Ingraham, 58 Barb., 295-296; In re Weston, 12 Metc., 1; Harmon v. Clark, 13 Gray, 114-122; In re Miller, 1 N. Y. Leg. Obs., 38.)</p> <p>The fact that the firm name was not signed to the bond, although executed by all the members of the firm, does not prevent its being regarded as a joint obligation. (3 Wait’s Pr., 598; 3 R. S [6th ed.], 640; Sterne v. Bentley, 3 How., 331; Merrifeld v. Cooley, 4 id., 272; Leahey v. Kingen, 22 id., 209; North Bank of Kentucky v. Wright, 5 Rob., 604; Ex parte Hunter, 1 Atkyns Ch. R., 223, 225, 227; Galway v. Matthew, 1 Camp., 403; Tilly v. Phelps, 18 Conn., 295; Agawan Bk. v. Morris, 4 Cush., 99; De Jarnetts' Exrs., 31 Ala., 232-233; Burnley v. Rice, 18 Tex., 481; Parsons on Part., 178; Harrison v. Jackson, 7 T. R., 203; Green v. Beales, 2 Caine’s Cases, 554; Clement v. Bush, 3 Johns. C., 180; McNaughton v. Partridge, 11 Ohio, 223; Ex parte Stone, L. R., 8 Chanc. Ap., 914-917; In re Bradley, 2 Bissell, 517; Daniel v. Toncey, 2 Metc., 2; In re Warren, Davies R., 325; Fairchild v. Fairchild, 64 N. Y., 417; Springton v. Sampson Admr., 32 id., 703; Conklin v. Cantrell, 64 id., 217; Allison v. Davidson, 2 Dev. Ch. [N. C.], 79; 3 Kent’s Com., 65; Greenwood v. Broadhead, 8 Barb., 596; Greenwood v. Choller, 21 id., 596; Allen v. Centre Valley Co., 21 Conn., 130; Ex parte Ruffin, 6 Vesey, 119; Campbell v. Mallett, 2 Swain, 551; Ex parte Williams, 11 Vesey, 5; Wildner v. Keeler, 3 Paige, 167; Murray v. Murray, 5 Johns. Ch., 60; Ex parte Peacock, 2 Glyn. & J., 27; 3 Kent’s Com., 76, n.; In re Ingalls, 5 Law Rep., 401—402; Hoare v. Oriental Bk. Corp., L. R., 2 App. Cas., 589.)</p>

(Reported below, 10 Hun, 420.) This action was brought to recover damages for the alleged unlawful removal from lauds of one William J. Townsend and conversion of an engine and boiler. The facts appear sufficiently in the opinion. The chattel mortgage was inoperative and void as against the purchaser of the real estate at the sheriff’s sale.

<p>The State has such a title or interest in a draft indorsed to the State treasurer and delivered into his office by a county treasurer for the payment of taxes due the State, that an action may be maintained in the name of the People for a conversion thereof.</p> <p>P., a clerk in the office of the State treasurer, without authority, indorsed a number of such drafts and negotiated them. Defendant took them from the indorsees, collected the money from and surrendered them to the , drawees. Held, that defendant was liable to the State for a conversion of the drafts; that it could not claim an exemption on the ground it took them in good faith, solely as agent, in the course of a public employment.</p> <p>It seetns, that the State treasurer may delegate the power to indorse such drafts to a- clerk in his office; it is not an act involving the exercise of judgment or discretion, and it is not one of the official duties prescribed by statute which must be performed by the treasurer in person.</p> <p>P was styled “ cashier” in the treasurer’s office; his general duties were to keep the treasurer’s ledger and cash book and the bank pass books, to make bank deposits, and to make certain petty cash disbursements; it was no part of his duty to indorse drafts, he was expressly prohibited from doing so, and upon several occasions when he assumed to do it the treasurer, when .it came to his knowledge, forbade it. Held, that the evidence authorized a finding that P had no authority express or implied to indorse.</p> <p>Also, held, that even if on one or two occasions when P. indorsed, the treasurer, when advised of it, did not express to him his disapproval, this was not material upon the question of actual authority.</p> <p>At one time, the treasurer, when absent from his office, sent two drafts payable to his order as treasurer to P. with directions to deposit-; the clerk indorsed the name of the treasurer and deposited them. Held, that this did not show authority to indorse drafts generally.</p> <p>Upon another occasion, when P. had indorsed a draft, the holder not satisfied with the indorsement sent it to the treasurer, who indorsed it himself. Held, that this was not evidence that the treasurer sanctioned or ratified the indorsement by P.; but on the contrary that he recognized its invalidity.</p> <p>It appeared that P. indorsed in all fifteen drafts aside from those in question; defendant did not know of any of these indorsements," or of any of the facts existing, which induced or could induce it to suppose that P. had authority; it simply acted upon his indorsement upon the drafts taken by it. Held, that the State was not estopped from denying the authority of P. to indorse, as defendant was not induced to act by any apparent authority.</p> <p>Apparent authority operates only by way of estoppel, and takes the place of real authority only where some person has acted upon the appearances.</p> <p>A person is not, as a general rule, estopped from showing title to property simply because he has not exercised ordinary care to prevent an unauthorized transfer thereof by another.</p> <p>It is only where, by negligence, he has permitted such other person to clothe himself, or to be clothed, with apparent authority to act for him, and thereby a third person has been induced to rely and act upon the appearance that the owner is estopped.</p> <p>Accordingly held, that the State was not estopped by a finding that the treasurer mig-ht, by ordinary care, have discovered and prevented the fraudulent acts of P. in indorsing and diverting the drafts.</p> <p>As to whether an estoppel, by negligence or otherwise can be invoked asi against the State, gumre.</p> <p>The drafts, after payment by the drawees, were returned to the drawers, and, thereafter, were returned to the State treasurer, at his request, to enable him to ascertain the extent of the defalcation of P., and as evi-" dence, not with any intent on the part of the treasurer to use or enforce them as existing obligations, except by bringing actions against parties who had converted them. Held, that the fact that they came again into the possession of the treasurer did not under the circumstances go in mitigation of damages; also that it was immaterial that before the commencement of the action plaintiffs demanded the drafts of defendant, it having refused to deliver.</p> <p>The defendant, in an action for the conversion of property, can only claim a mitigation of damages, because of a return of the property, where the owner has accepted its return or has resumed dominion over it as owner.</p> <p>Two drafts which came into the treasurer’s .office in the same manner as the other, were indorsed in blank by the deputy treasurer, who had authority, and were delivered to P. for deposit in one of the legally designated deposit banks. P. filled up the blanks in the indorsements with the name of the cashier of a firm of private bankers and delivered them to that firm, defendant took and collected them. Held, that defendant was not liable for conversion of them; that the drafts were not received and were not 4 o be regarded as money in the hands of the treasurer, and he was not bound to place them in the deposit banks, but could collect them in any manner he chose; and that, therefore, the fact that they were in the hands of private bankers was not such notice to defendant that they had been wrongfully diverted as to charge it wnh bad faith in dealing with them.</p>

The nature of the action and the facts appear sufficiently in the opinion. No personal judgment could be rendered against the contractor unless the lien was established.

On June 24, 1876, plaintiff obtained a judgment herein for $4,334.08.

(Reported below, 11 Hun, 432.) This action was brought to recover damages for an alleged breach of a contract between plaintiff and David M. Peyser, defendant’s testator, by which said Peyser agreed to take certain rooms in plaintiff’s hotel from September 1, 1866, to May 1, 1867, he to pay $62.50 per week up to November 1, 1866, and $150 per week after that time.

This action was brought upon an undertaking given to stay proceedings, 011 appeal from a judgment in favor of plaintiff against Henry I. Butler.

This was an actio u upon a contract. Defendant having been invited by the building committee of a religious society to make tenders for doing… Held: that plaintiff was not entitled to recover ; that although defendant had the benefit of the use of the bills of quantities so furnished, yet that this did not answer the proviso of the contract upon wdiich alone he was under express legal obligation to pay ; that when defendant’s tender was rejected and that of a third person…

This was an action for alleged negligence causing the death of Margaret Hoffman, plaintiff’s intestate. Held: error ; that it was defendant’s duty to furnish a safe and convenient passage from its depot to the highway (Ilulbert v. N. Y. G. and H. R. R. R. Go., 40 N. Y., 145), and there was ground for a finding, that in consequence of its neglect to perform that duty passengers would need. to go along the tracks to pass conveniently from the…

Plaintiff’s intestate was killed at a crossing on defendant’s road. The evidence showed that the deceased had ample opportunity before crossing to see the approaching train in time to have avoided it. Held: no error; the court citing Reynolds v. JST. Y. O. and H. R. R. R. Go. (58 N. Y., 248).