Volume 8 — New York State Reporter

<p>Í. Reference—Long account—Right to trial by jury,</p> <p>An action for unliquidated damages for the breach of a building contract, in which it is claimed that defendant abandoned the work, whereby plaintiffs were compelled to complete, in no sense involves any account, and both parties are entitled, under the constitution, to a trial by jury.</p> <p>2. Same.</p> <p>In his bill of particulars plaintiff specified eight items of damages relating to loss of interest of occupancy, etc., etc. MM, that these items did not constitute an account.</p> <p>3. Same.</p> <p>If the action is non-referable, a counter claim set up in the answer cannot make it so.</p> <p>4. Same—Motion fob reference, on what founded.</p> <p>Meld, that although the motion for reference was made upon an affidavit of plaintiff’s attorney, with no opposing affidavit, yet it was also founded upon the pleadings which are before the court, and it can judge whether an account will be involved in the trial of the issues.</p>

<p>1. Supplementary proceedings—Order to examine defendant.</p> <p>The judgment upon which an order to examine the defendant in supplementary proceedings was granted was regular, unsatisfied of record and sufficient to sustain the order. Held, that if there was anything due or unpaid on the judgment, a motion to vacate the order was properly denied.</p> <p>3. Same—Practice where dispute as to fact of payment.</p> <p>Where the facts upon which defendant claims the judgment in said action was paid, and the right to set off certain claims that the defendant had against the party owing the judgment was disputed. Held, that the proper remedy for defendant was by motion to have the judgment declared satisfied of record.</p>

<p>Appeal by the plaintiff from an order of the special term, granting a motion that two judgments entered in the court of common p^eas in favor of the»defendant and respondent and against Eichard Taylor, the assignor of plaintiff— one for $279.57 and the other for $82.44, and that $150.40 of a judgment entered in this court in favor of said defendant and against said Eichard Taylor for $255.48, making in all, with interest, the sum of $526.39, be set off against a judgment for said last mentioned sum of $529.30, entered in this court in favor of said Eichard Taylor and against said defendant, Hugh Smith, in which action plaintiff has been substituted, and that said judgment last mentioned be canceled and discharged of record.</p> <p>Three actions were commenced by Eichard Taylor, plaintiff’s assignor, against the defendant; one in the court of common pleas and two in this court. In the action in the common pleas, and in one of the actions in this court, the defendant recovered judgment. From the judgment recovered against him in the court of common pleas the said Taylor appealed, and judgment upon the dismissal of his appeal was duly entered against him, making in all the three judgments set forth in the foregoing statement in favor of the defendant and against said Taylor, the aggregate of which judgments exceeds the amount of the judgment rendered against said defendant by the sum of $105.08. And these judgments were entered subsequent to the assignment, and all the actions were prosecuted to judgment in the name of Eichard Taylor, the assignor. In the one recovered by said assignor, and against the defendant, in which the damages awarded were less than the one-tenth part of his claim, the plaintiff, as his assignee, was substituted in his stead, and now claims to cut off the defendant from his right to set-off so much of the judgments in his favor as will satisfy and discharge the judgment against him. The said Eichard Taylor, plaintiff’s assignor, was alleged to be financially irresponsible.</p>

<p>Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.</p>

The release referred to in the opinion was: ‘ ‘That the said party of the first part for and in consid■eration of the premises, and of the sum of one dollar to him in hand paid by said party of the second part, does hereby for himself, his heirs, executors, administrators and assigns •covenant and agree to and with the said Abraham Gut-man, his heirs and assigns that if he will complete his said purchase, and shall take and accept a deed of the said premises, that neither…

<p>Appeal by the defendant from an order of the special term allowing the plaintiff leave to serve an amended complaint on payment of twenty dollars costs.</p> <p>This action was originally brought to recover the total damage to plaintiff’s easements of light, air and access, appurtenant to his property in Amity street and South Fifth avenue, in consequence of the construction, maintenance and operation of defendant’s railroad. Ireland v. Met. El. B. B. Co., 52 Super. Ct., 450. The plaintiff had a verdict in November, 1884, for $13,550. The defendant appealed to the general term. In December, 1885, the judgment appealed from was reversed, and a new trial was ordered, " with costs to the appellant to abide the event. ” The court then held that the total damage to the fee might be recovered, upon an offer at the trial to convey the property .alleged to have been taken, but that damages to the rental value could not be recovered in this case. Id. In January, 1886, the court of appeals decided that no action would lie to recover the total damage to the fee in such a case, but the plaintiff’s only remedies were either successive suits to recover his temporary damages to the rental value, or an action in equity to restrain the operation of the railroad and .abate the nuisance; or, -where the highway has been exclusively appropriated, an action of ejectment.</p> <p>Accordingly, when the new trial came on before Judge Freedman and a jury, in March, 1886, the defendant ■objected that the complaint was insufficient, because it .stated only a cause of action for injury to the fee, and no •such action would lie. The court sustained the objection, but gave the plaintiff leave to withdraw a juror and apply ■to the special term for relief.</p>

On December 21, 1868, the plaintiff was the owner of two United States registered bonds, which bonds were for the sum of $5,000 each, and numbered 2036 and 2037; on said day the plaintiff, at the request of defendants, delivered the bonds, endorsed by him in blank, to a firm composed of the defendants herein and one Starbuck, now dead, and the defendants gave him a receipt or certificate by which they acknowledged the receipt of the bonds, describing them specifically by…

<p>Parties—Substitution of administratrix—When proper.</p> <p>Relator claims that her husband was improperly dismissed from the Are department and seeks, as his administratrix, to be substituted as plaintiff that she may reverse the orders affirming the proceedings of the Are commissioners. Held, that as in case the decisions below are reversed, she would be entitled to the salary or damages and the estate relieved from costs, the court has power to substitute her as plaintiff.</p>

The action is brought to recover damages alleged to have been sustained by the plaintiff, by the obstruction of the flow of water in its proper channel from her land. The plaintiff recovered, and the defendants appeal.

<p>Appeal from a judgment entered upon a verdipt of the Monroe county court, and from an order denying motion for new trial.</p>

<p>1. Contribution—When granted.</p> <p>The doctrine of contribution rests on the principle that where parties stand equal in right and duty in their relation to the subject of the bur-then and to each other, the laws requires equality which is equity, and that each shall bear his proportion of it. And when one so situated has been required to, and has performed or paid more than his share of the egal duty or obligation, he may have relief against the other, either in an action at law or in equity.</p> <p>2. Same—Surety against co-surety—Need not show insolvency of PRINCIPAL.</p> <p>A surety can maintain an action for contribution against his co-surety without making it appear that the principal is insolvent, or that he has been unable to collect of him. This is especially so in actions at law.</p> <p>3. Same—What a defense in action against co-surety.</p> <p>In such a case, the fact that the plaintiff is indebted to the principal debtor in a sum of sufficient amount to pay the debt for which the parties, are sureties, is not a defense for the co-surety. But indemnity furnished by the principal to one surety, is held for the benefit of all the sureties, and the relinquishment of it by him without their consent is a defense in an action by him against his co-sureties for contribution.</p> <p>4. Committee of a lunatic—Duty to pay debts of lunatic.</p> <p>It is the duty of the committee of a lunatic to account for the estate-which came into his hands as committee, and if sufficient to pay with it the debts of his ward. He is under no personal obligation or liability as. committee to pay the debts of his ward or to give' his notes for their payment.</p>

<p>1. Wills—Devise—What does hot vest title to land in executors.</p> <p>By his will a testator gave his executors full power to sell and convey certain of his real estate, and bequeathed the proceeds in part to his son, in part to his executors in trust for his daughters, directing them to invest it in real property for the sole use and benefit of each daughter during her natural life, with remainder in fee to the heirs-at-law of her body. And as to the share of one of the daughters, it was provided that in case she died without issue before attaining her majority, the share bequeathed to her should go to his surviving children. The executors never executed the power of sale given them. The children of the testator other than the one last designated, conveyed their property; she died without issue after reaching her majority. Held, that the executors took no title to the land.</p> <p>2, Same — What does not constitute a trust under 1 Revised Statutes, 728, § 55.</p> <p>Held, That there was no trust created within the terms of 1 Revised Statutes, 728, § 55.</p> <p>8. Same—What language sufficient to express a trust.</p> <p>Held, That though it was not necessary to express in the terms of the instrument the provisions of the statute, sufficient must appear to permit a construction to embrace them.</p> <p>4. Same—Devise of lands subject to power—1 Rev. St., 729, § 56.</p> <p>Held, That the lands descended to the heirs of the testator subject to the execution of a power. 1 Rev. St., 729, § 56.</p> <p>5. Same—Equitable conversion—Re-conversion.</p> <p>A power and direction given by a will to sell lands and distribute the proceeds, operates ordinarily as a conversion of the realty into p( rsonal estate, but that may not be so where the direction is to invest the proceeds in real estate, then the proceeds have the character of the property in which tlie investment is directed to be made.</p> <p>6. Acquiescence—What will be interpreted as.</p> <p>In this case the executors were vested with the power of sale during a period of more than twenty-five years; and most of the parties interested in the lands subject to the will had taken and conveyed their interest, and title therein, and so far as they could, had elected to dispense with the execution of the power of sale. Held, That the lapse of time would seem to permit the inference of acquiescence on the part of the executors in such appropriation and disposition of the property by the beneficiaries.</p> <p>7. Partition—Action for—When maintainable.</p> <p>Held. That the circumstances were such as to enable an heir of one of the parties designated in the will as a devisee to maintain an action for a partition of the premises.</p>

Motion by defendant for new trial on exceptions taken at Cattaraugus circuit, and ordered heard at general term in the first instance.

<p>Motion by plaintiff for re-argument or for leave tovtake ■appeal to the court of appeals.'</p>

<p>Appeal from order of the Erie special term appointing commissioners to ascertain and appraise the compensation to be made to Catharine Miller, as the owner or person interested in a right or easement in certain real estate. She appeals.</p>

<p>1. Recording of contract for sale of land—Effect—1 Rev. Stat., 762, §39. •</p> <p>The only effect of the statutory provision for the recording of contracts for the sale of land (1 Rev. Stat., 762, 65 39), is to preserve evidence and facilitate the proof thereof, and the record is not constructive notice to subsequent purchasers or encumbrancers, and no action can be maintained to cancel it as a cloud upon the title.</p> <p>2. Specific performance of contract for the purchase of land—When decreed.</p> <p>In an action to compel the specific performance of a contract for the purchase of land, the defense was that the title was defective because of a recorded contract of sale. Said contract was signed by a third party, “agent of M. Doll,” and there was annexed the following certificate: “ For a valuable consideration to me in hand paid, I hereby certify the above and agree to make perfect title within the time agreed upon,” and signed by Michael Doll. The said Doll was only entitled to one-tenth of the premises, had no power to convey, and the time mentioned in the said contract had passed long before the contract for which specific performance was asked was given. Held, that it was no cloud upon the title. Performance decreed.</p> <p>3. Same—When not decreed—What proper remedy.</p> <p>The rule is that specific performance will not be decreed when performance is impossible. That in such cases the proper remedy is in an action for damages.</p>

<p>Appeal from a judgment of the court of sessions of Erie county, convicting the defendant of the crime of bigamy.</p>

<p>Appeal from order of the Wayne county court setting aside á judgment entered in favor of the appellant.</p>

<p>Appeal from a judgment in the defendant’s favor for the-sum of $14.25 damages and $341.89 costs, entered upon the* report of a referee.</p>

The action was brought for an accounting between the parties as partners, in _ relation to the business and assets of the partnership, which had terminated. The referee found, a balance due the plaintiff, for which judgment was directed and entered. The defendant appeals.

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

<p>Appeal from -judgment of Cattaraugus oyer and terminer, convicting the defendant of the crime of murder in the first degree and directing execution of the sentence.</p>

<p>Principal and agent—What constitutes an agent—Principal—When BOUND BY ACTS OP.</p> <p>In an action for the recovery of money loaned, it was shown that drafts payable to the order of plaintiff’s husband were endorsed payable to the order of their son, who effected the loan to defendant, making no mention of his mother in connection therewith. Defendant credited the amount he borrowed on the account of the son, and had no knowledge of the interest of the plaintiff in the funds. The son, with the knowledge of plaintiff, drew against the fund from time to time for various purposes. The plaintiff never drew on the account and never had any conversation with the defendant upon the subject of the money. Plaintiff, though aware her son was using the money in various ways for years before this action was commenced, said nothing. All the money having been drawn by the son of plaintiff. Held, the complaint was properly dismissed; that the son was agent of the plaintiff, clothed with the indicia of title, and she was bound by his acts; that the defendant was entitled to believe he was dealing with the son as a principal and was protected.</p>

<p>Appeal from a judgment entered upon a verdict rendered at the Monroe county court and from an order denying motion for new trial.</p>

Action for an alleged conversion of part of a stock of goods, consisting of ready-made clothing, in a retail store in the city of Buffalo. Held: as matter of law, that on the twenty-ninth of May, when the demand was made, the plaintiffs were the owners, and entitled to the possession of the goods described in the complaint; and that the defendant’s refusal was a conversion, by which the plaintiffs suffered damage to the amount of the value of such goods, for which amount he…

<p>1. Municipal corporations—Charter op the city op Buffalo, section 18, TIT. 9, AS AMENDED BY I/AYVS 1879, CHAP. 486, § 19—EXISTING LAWS REPEALED BY IMPLICATION.</p> <p>The charter of the city of Buffalo, section 18, tit. 9, provides that the common council may cause streets and alleys to he opened, leveled, repaired, swept, cleaned and watered, and that no work or improvement specified in the act, the expense of which shall be estimated by the common council to exceed $500, shall be ordered, unless by the vote of two-thirds of all the members of the common council, after publication in six successive numbers of the official papers of the intention to order such work or improvements. This act was amended by Laws 1879, chap. 486, making section 19 provide that the city shall not enter into a contract with any person for doing or making any work or improvement at a price exceeding $200, except for the sprinkling and watering of streets, which may be done without notice as prescribed therein where a majority of the owners of property on a street petition therefor (which petition shall be referred to the assessors, and this certificate shall be conclusive), until they shall have published a notice in five successive numbers of the official paper, inviting sealed proposals to do the work * * * and shall not enter into a contract for the doing or making any such work or improvement for a price exceeding $500, except for sprinkling or watering streets, until the assessment therefor has been confirmed. Held, that where a new • rule was provided by the amendment, it must be held to supersede the old one contained in section 18. although there was no clause expressly repealing it.</p> <p>2. Court—Duty of, to give effect to intention of legislature when ASCERTAINABLE.</p> <p>Held, that where the intent of the legislature may be ascertained, it is the duty of the court to give it effect,</p> <p>3. Same—Equitable powers of, cannot be invoked to set aside assessment FOR IRREGULARITY.</p> <p>Where expenses had been incurred for sprinkling the streets under the authority of the above-recited provisions, and an assessment laid for the liquidation of them: Held, that it was necessary to show the invasion of some substantial right in order to vacate the assessment, and that a mere irregularity was insufficient to set in motion the equitable powers of the court for that purpose.</p> <p>4. Assessment-roll—Presumed valid until proved otherwise.</p> <p>Held, that until proved to be otherwise, there is a presumption In favor of the validity of an assessment-roll.</p>

<p>1. Municipal corporation—Charter of the city of Buffalo, title 3, § 8, sued. 4—City ordinances, chapter 5, § 20—Regulations as to ERECTION OF BUILDINGS.</p> <p>The common, council of the city of Buffalo, by title 3, § 8, of the city charter, are empowered to enact ordinances, and, by subdivision 4 of said section, it is provided that they may exercise such power to prescribe the limits within which wooden buildings shall not be erected, and the manner in, and materials of which all buildings shall be constructed within such limits, and that every building erected or placed contrary to any ordinance passed under the provision last recited shall be deemed a common nuisance, and may be abated as such. By city ordinances, chapter 5, § 20, enacted under the authority of the law above cited, it is provided that in a certain portion of the city of Buffalo no wooden buildings shall be erected, and in a certain other portion none without the permission of the common council. Held, that the power having been conferred upon the common council to prohibit the erection of wooden buildings, this included the right to impose conditions on their construction.</p> <p>2 Same—Power to prohibit an act includes the power to impose conditions UPON THE PERFORMANCE OF IT.</p> <p>Held, that a departure from the terms imposed as the condition of the construction of such buildings was a violation of the permission given.</p> <p>3 Same—Violation of conditions imposed—Abatement of nuisances.</p> <p>Held, that a structure erected in violation of this ordinance having, by the terms of the statute, been declared a nuisance and subject to abatement as such, it was not necessary that an ordinance to that effect should be passed by the common council.</p> <p>4. Same—City ordinances, chapter 5, § 22—Nuisance may be abated.</p> <p>City ordinances, chapter 5, § 22, provides that nothing in that section contained shall in any manner impair or affect the right of the common council to treat such building or part of a building as a common nuisance, and to abate it as such by virtue of subdivision 4 of section 8 of title 3 of the city charter Held, that the common council were not limited to the imposition of a penalty for a breach of a permit granted pursuant to the provisions of section 20, but that the structure might be summarily abated as a nuisance.</p>

<p>1. Contract—What "will not render it void for uncertainty.</p> <p>By a contract entered into between the parties to this 'action, it was provided that the plaintiff should, for twenty days, have the exclusive right to effect a sale of the defendant's farm, and that in event of his securing a purchaser therefor he should be entitled to receive the sum of $1,000. The conditions of sale were the payment of $2,000 and two mortgages. The plaintiff secured a purchaser who executed a v.ilid, binding contract of purchase in which the description of the premises varied from that in the contract between the parties to this action Held, that the description being sufficient to enable the land to be located, the contract was not void for uncertainty.</p> <p>2. Same—What is performance of condition</p> <p>Held, that the contract of purchase providing for the payment of a mortgage, the description of which, in all aspects excepting as to the party by whom it was held tallied with the description of the mortgage in . the original contract, an objection taken that- there was a material variance between the contracts was not tenable on that ground.</p> <p>3 Same—Compliance with terms of—What is.</p> <p>Held, that by an agreement to assume the other mortgage it must be understood that the payment thereof was assumed, and that such was a compliance with the terms of the contract.</p>

<p>Appeal from an order made at a special term of this court, denying the plaintiff’s motion to punish for contempt James Sutton, one of the sureties on the undertaking given herein by the defendant (see 5 N. Y. St. Rep., 906) upon an appeal to the court of common pleas.</p>

<p>1. Landlord and tenant—Measure of damages on breach of covenant BY LANDLORD TO FURNISH STEAM POWER.</p> <p>The damages naturally flowing from, the breach of a landlord’s covenant to furnish steam power, is what it necessarily costs to obtain the power from other sources, or if it cannot be obtained the diminished value of the premises in consequence of the want of it.</p> <p>2. Bill of particulars.</p> <p>A bill of particulars of special damages should be as full and specific as the facts admit of.</p>

<p>The plaintiff on February 20, 1885, leased to Evans & Darling, the premises No. 6 Bond street, for five years from May 1, 1885, at the yearly rent of $4,000, payable quarterly. On the 7th of August,'‘ 1885, Evans & Darling made a general assignment for the benefit of their creditors, in which the defendant was named as assignee. The plaintiff was made a preferred creditor for the quarter’s rent due August 1, 1885. The defendant took possession of the premises upon accepting his trust, and continued in possession until November 22, 1885, a period of three and one-half months., He put his sign on the premises and disposed of the goods therein, having clerks and employees to assist in the business: The lease is not mentioned in the assignment, but the defendant knew of it before and at the time of accepting the trust. The present action is for rent from the 7th of August, 1885, to November 22, 1885, the period of the defendant’s occupation, aggregating $1,166.66. There is no material dispute as to the facts. Upon the conclusion of the trial, the court directed a verdict in favor of the plaintiff for the amount claimed, with interest, and from the judgment entered on this direction the present appeal is taken.</p>

<p>The plaintiff brought the present action to recover $2,000 damages for an assault and battery alleged to have been committed upon her by the defendant. Alter issue joined, the cause was reached on the general calendar, and on the failure of the defendant to appear, an inquest was taken June 11, 1886, and the jury assessed the plaintiff’s damages at $250. Judgment was 'entered and execution issued on the same day. The defendant moved to open the default, and on August 11, 1886, his application was granted; he was allowed to come in and defend, the judgment and all proceedings thereon to stand as security. The cause was restored to the calendar, and while awaiting trial, the plaintiff died intestate. Letters of administration were granted to Andrew V. Smith, who thereupon applied for leave to continue the action as administrator. The application was denied, and from such denial the appeal is taken.</p>

The defendant, a resident of Ansonia, in the state of Connecticut, came to the city of New York to attend court in an action in which he was plaintiff. Before he had an opportunity to return to Connecticut, the summons in the action first entitled, and an order in supplementary proceedings in the second action were served upon him.

<p>Appeal from a judgment directed by the court in favor of the plaintiff.</p>

<p>Appeal from an order made by the trial judge limiting the defendants to but one bill of costs.</p>

<p>Appeal from a judgment of the trial term entered herein dismissing the plaintiff’s complaint.</p>

<p>1. Inn-keeper’s and boarding-house keeper’s lien—Married women.</p> <p>A boarding-house keeper has no lien on the separate personal effects 'and wearing apparel of the wife living at the boarding house with her husband, where the husband was received under a contract to furnish board for himself and wife.</p> <p>2. Pleading—Amendment—Code Crv. Pro., §§ 539, 540 and 783.</p> <p>It is within the power of the court to allow amendments and excuse default. Code Civ. Pro., §§ 539, 540 and 783.</p>

<p>Practice—Examination before triar.</p> <p>A party will not be permitted to examine his opponent before trial to find out what he is going to prove “ in order to prepare to rebut any such evidence if offered at the trial.”</p>

<p>The plaintiff demised to the defendant, by written lease, tiie large front office in the third floor of building No. 179 Broadway, in the city of New York, for the term of one year, commencing May 1, 1884, and ending May 1, 1885, at the annual rent of $1,000, payable quarterly. About February, 1885, the plaintiff commenced alterations on the building, with the intention of connecting it with the adjoining property. The alterations continued up to May 1, 1885. The court, although requested, declined to send the case to the jury, and directed a verdict in favor of the plaintiff, a circumstance which compels us to accept as true for the purposes of this appeal, the evidence of the defendants. From this, it appears that while making the changes the plaintiff cut the pipes, so that the water closets required by the defendants and their employees could not be used, and the water could not ascend, as it had previously done, in consequence of which the defendants were obliged to send outside for water to supply the customary wants, of the establishment. The. gas pipes were cut and the hallways rendered dark, and the defendants were obliged to obtain and use candles, instead of the gas formerly furnished by the plaintiff. That the defendants suffered ether inconveniences, and were deprived of privileges appurtenant to the premises and essential to their enjoyment, in consequence of which the defendants, a few days before May 1, 1885, abandoned the premises; that they could not get another ■ place sooner. From the judgment entered upon the verdict directed by the trial judge, the defendant’s appeal.</p>

<p>Appeal from a judgment entered by direction of the trial judge dismissing the plaintiff’s complaint.</p>

On the 13th of January, 1886, the plaintiff’s wife died. Plaintiff employed an undertaker to conduct the funeral in a manner suitable to her condition in life. The bill amounted to $138. Plaintiff paid thirty on account. The undertaker sued him for the balance, $108, and recovered a judgment which he paid. Plaintiff’s wife left a will in which the defendants were named as executors.

<p>Appeal from a judgment rendered in the district court of the city of New York, for the Tenth judicial district, in favor of the plaintiff against the defendant.</p>

<p>An. application for leave to go to the court of appeals or for re-argument of an appeal from the judgment of general term of the city court affirming the judgment of the trial term.</p> <p>The grounds of the application were the exceptions taken to admission of evidence on the trial.</p>

The plaintiff sues to recover wages amounting to $80.31 for labor and services rendered to the. defendant at its offices in the city of New York.

The plaintiff recovered judgment for the amount of a preliminary payment on a contract for purchase of real estate sold at auction, she having rejected the title offered by the defendant.

<p>Appeal—When court will affirm, though it has great doubts op TRUTH OP TESTIMONY.</p> <p>Though the appellate court may have very great doubts as to the truth of testimony, yet where there is no documentary evidence that contradicts ■ the witness, and his testimony is not absolutely uncredited or unreasonable, and considering the opportunity that the justice had of seeing the witness and estimating his character gives him great advantage in judging his veracity, it will defer to his decision and affirm the judgment.</p>

This is an action to foreclose a mechanic’s hen. The case was referred to Wilbur Larremore, Esq., to hear and determine all the issues. The facts appear in the following opinion of such referee.

76 in favor of the plaintiff entered upon an order confirming the report of a referee to whom the matter in controversy had been referred under the statute. The original plaintiff was Ann M. Brooks, the widow of George Brooks, deceased, who brought this action against the defendants as administrators with the will annexed of the said George Brooks.

<p>Evidence—Books of account—What foundation for their admission NECESSARY.</p> <p>To enable a party’s own books of account, to be put in evidence in his favor, the rule is that a foundation must be laid for their admission by proving that the party had no clerk; that some articles charged had been delivered; that the books produced are the account books of the party, and that he keeps fair and honest accounts, and this must be done by those who have dealt and settled with him upon the faith of his correct bookkeeping. Following Vosburgh v. Thayer, 12 Johns., 462.</p>

<p>Practice—Bill of particulars—When ordered.</p> <p>Tlie defendants in their answer stated that other shares of stock had oecn bought and sold by the defendants on the employment of one Eno. It was stated on behalf of the plaintiffs that neither they themselves nor Eno had any knowledge of the purchase or sale of such shares. Held, that statement did not impair their right to a bill of particulars as to said alleged purchase and sale.</p>

<p>1 Partnership—What constitutes persons co-partners.</p> <p>Where one is only interested in the profits of a business as the amount of compensation for services rendered, he is not a partner. Manhattan Brass Manufacturing Co. v. Sears, 45 N. Y., 797, distinguished.</p> <p>2. Same—Test of partnership.</p> <p>The test of a partnership is the community of profits—a specific interest in the profits as profits in contra-distinction to a share of the profits as a compensation for services. Following Leggetts. Hyde, 58 N. Y., 272.</p>

<p>1 Practice—Appeal—There must be findings or exceptions.</p> <p>Where there have been in a case no requests to find or exceptions to findings of fact or conclusions of law, unless manifest injustice has been done, the general term of the supreme court will not reverse a judgment appealed from.</p> <p>8 Corporations—Power to issue shares—When shares void.</p> <p>A corporation cannot issue its shares unless for money or property. Shares issued entirely without consideration are void unless they become the property of a third party without notice.</p>

<p>1. Attachment-Certificate by person having in possession defendants’ property—Examination of such party—Code Civil Pro., §§ 650, 651.</p> <p>Where a certificate given in accordance with the provisions of Code Civil Procedure, § 650, is not a bona fide compliance with the demand made, the attaching creditor, is not bound to take the statement of the de - fendants’ debtor, but is entitled to an examination under Code Civil Procedure, § 651.</p> <p>2. Same—Nature of certificate—Code Civil Pro., 650.</p> <p>The Code contemplates in the certificate provided for by section 650, a general statement specifying the amount, nature or description of the property held bv the parties furnishing it or the defendants’ interest in the property so held, or the debts or demands owing to the defendants as the case may require.</p>

<p>Attachment—Evidence of fraud.</p> <p>False representations as to mercantile standing, form no ground for an attachment. Where a statement has been made of the debtor’s financial condition and later another is made showing a decrease in the stock of large magnitude, the existence of this discrepancy will not be evidence of a fraudulent disposition of the property and will not be sufficient to sustain the levy when it appears that the latter statement was made rather carelessly, and it finally appears that the property seized exceeds in value the inventoried estimate, and the decrease is proved to have been caused by the ordinary conduct of business transactions. The threat to make an assigment is not a fraud nor is the payment of certain creditors in full in preference to others, as under the law the debtor has the right so to do.</p>

<p>Pleading—Supplemental complaint—Demurrer.</p> <p>Where the supplemental complaint is to he read as part of the original complaint, and does not pretend to set out an independent or different-cause of action, if the two together allege facts sufficient to constitute a cause of action, a demurrer to the supplemental complaint alone is improper.</p>

<p>Corporations—Manufacturing—When the trustees report must be filed.</p> <p>By the Laws of 1848 the trustees of a manufacturing corporation are required to file their annual report within the first twenty days of January, and it will he construed to he a failure to file the report even though it be filed prior to January first.</p>

<p>1. Statute op limitations—Action on a note—Evidence op part pat MENT.</p> <p>In an action on a note which is barred by the statute of limitations, it is competent to put in evidence the various transactions out of which grew the debt for which the note was given, and in so doing to prove a payment which takes the note out from the operation of the statute.</p> <p>2. Evidence—Mode op pooop—Objection to be stated.</p> <p>If the mode of proving a competent fact is objectionable, the objectionable feature should be stated that the party may avoid the objectionable mode if possible.</p>

<p>1. Practice—Trial before jury—Requests to charge—Duty of the COURT.</p> <p>A request to charge is improper in form when it embraces a proposition of law and a statement of fact. It is not the duty of the court to detail the evidence to the jury.</p> <p>2. Brokers—Stop-order—Definition of the term:.</p> <p>The meaning of a stop-order is to await a certain figure, and whenever that figure is reached, to stop the transaction by buying in as well as possible.</p> <p>3. Same—Broker’s liability ik buyirg or a stop-order.</p> <p>If a broker’s buying is not authorized by a stop-order or the default in the margin, the customer may repudiate the transaction and recover the deposit made as aamargin. This action of the broker does not constitute a conversion. There is nothing to convert.</p> <p>4. Evidence—Hearsay—Entries of prices by the board of trade.</p> <p>The prices entered by the board of trade are admissible as evidence of the value of the stock and are not hearsay. The knowledge of the prices is obtained by those who are present at the sale, in the employment of the board of trade, to obtain these facts and hear these persons at the times of the various transactions. It is also competent to show that this book is used and relied upon by the Board of Trade and dealers.</p> <p>6. Same—Secondary evidence—Sworn copies.</p> <p>Where certain books are admissible, sworn or authenticated copies of them are competent if the original is an official paper or is not of the jurisdiction of the court.</p> <p>6. Same—Res gestje—Admissibility of letter.</p> <p>Letters between the parties to a transaction, are admissible in evidence when they form part of the res gestee.</p>

<p>Deed of land—When set aside fob feadd and undue inlfuence.</p> <p>In an action brought to set aside a deed of certain lands in the city of Utica, executed by one Sarah Scott to the defendant, it appeared that said Scott was over ninety-three when she executed the deed, and for many years prior to that time she had been in feeble health, subject to fainting fits, her memory so much impaired that she retained no recollection of passing events and was unable to recognize her children and grandchildren, or her acquaintances with whom she was brought in frequent contact, etc. That she was in that condition of physical and mental weakness, which made her yield a ready and willing submission to the suggestions and request of those with whom she was immediately associated. She was ■under the immediate control of one of the grantees. Held, that it was incumbent on the defendants, the grantees, to show affirmatively that the deed was fairly and understandingly made, and that it expressed and carried out the true intent and purpose of the grantor, and that she understood the relation she bore to each of her children, their demands upon her bounty and the manner she in truth deshed them to be discharged. Failing in this, the deed should be set aside.</p>

<p>1. Taxes and assessments—City of Albany-Verification of assessment-roll—Laws 1883, chap. 298, title 9, § 29.</p> <p>The board' of contract and apportionment of the city of Albany in assessing the expense for the improvements of Washington avenue, pursuant to laws of 1883, chapter 298, title 9, § 29, in a book used for that purpose, in appropriate columns placed the names of the owners, and opposite each name respectively, the size of the lot, number, valuation, whether vacant or improved, while the sixth and last column was headed: '• Amount of Washington Avenue assessment," but in that column no figures were placed. While in .that condition the city officers required by said section, at the end thereof affixed their verification. At that time the so-called apportionment did not contain any of the several sums which the board had determined to apportion and assess against the property of the several owners or occupants. The sums appropriated were placed upon separate sheets of paper, in no wise connected with or made a part of said book; neither was there any verification attached to or made a part of said separate sheets of paper. Held, that the failure to verify the apportionment was a disregard of material and essential requirements of the said statute, rendering invalid the acts of the board of apportionment in respect thereto.</p> <p>2. Statutory proceedings affecting private property must be strictly pursued.</p> <p>In statutory proceedings, affecting the property of the citizen, the requirements of the statute must be strictly pursued and any substantial deviation from the procedure bylaw prescribed, vitiates such proceedings.</p>

The plaintiff’s actions are to foreclose two mortgages upon which default had been made prior to the appointment of a receiver for the mortgagor. The receiver entered into possession of the lands covered by the mortgage before the commencement of the actions. Leave of the court to sue the receiver was not obtained before action brought.

<p>The question of the incompetency of John Baird to manage himself and his affairs was referred to a commission to be tried by a jury. The order for the commission allows evidence as to his demeanor or state of mind for a time more than two years before the hearing.</p> <p>Mr. Baird now presents his petition, duly verified oy himself and also by Thomas Baird his brother, from which it appears that for upwards of three years and a half he has been confined in a lunatic asylum, and has been visited and seen principally by his family, who petitioned for the appointment of the commission, or by the physicians of the asylum, or those employed by his family to examine him. That he was brought from the asylum to the city on the day of the first hearing before the commission and jury, and that the hearing has been almost continuous up to the day before presenting the petition, when the evidence presented by the petitioners for the commission was closed. That his counsel thereupon moved the commission for a reasonable adjournment to enable him to prepare and procure testimony as to -Mr. Baird’s condition and state of mind at the time, which motion was denied, and the commission directed the hearing to proceed the next day. The judge at chambers granted an order that proceedings before the commission be stayed, and that the petitioners show cause why the commission should not be ordered to adjourn for a reasonable time.</p> <p>On the return of the order to show cause appeared,</p>

<p>Palmer was indicted for assault in the first degree and tried and convicted of assault in the third degree. The general term granted a new trial. Palmer’s counsel claimed that by the verdict he was acquitted of the charge of assault in the first degree and, therefore, could not be tried for that degree in the new trial, but only for assault in the third degree, and this was a motion made by Egbert Palmer’s counsel at the May general term, third department, to amend the order of the general term previously made by inserting therein substantially that the defendant, on the new trial, should be tried only for assault in the third degree, and not in the first degree as charged in the indictment.</p>

<p>1. Practice—Demurrer to answer when complaint insufficient.</p> <p>On demurrer to the answer the defendant is entitled to judgment if the complaint does not state facts sufficient to constitute a cause of action.</p> <p>3. Same—Action for accounting—Complaint—Sufficiency of.</p> <p>The complaint alleged an agreement between the plaintiff and defendant, by which they were to become interested in a common fund, and in substance charged that that fund, or some portion of it, together with the books containing a statement or evidence of the amount, was in the hands or under the control of the defendant, and that he retained the same and refused to account therefor, and that an accounting was necessary to ascertain the amount due or the standing of the accounts between the plaintiff and defendant, and asks for such accounting. On demurrer, Held, that the complaint stated a cause of action.</p> <p>3.' Same—Counter-claim—Code Civ. Pro., § 501.</p> <p>The counter-claim set up in the answer, to which a demurrer was interposed, was not alleged to have arisen between the parties to this action solely, nor did it appear that the claim accrued solely between the plaintiff and defendant, or had been assigned to the plaintiff. Eeld, that the demurrer must be sustained under Code Civ. Pro., § 501, subd. 1.</p>

<p>1. ; Pleading—Distinct defenses set up in answer must be tested SEPARATELY.</p> <p>Where an answer contains several defenses, no one of which adopts any allegations of the other, each must be tested separately.</p> <p>2. Water courses—Overflowing of lands—Laws 1882, chap. 176—Laws 1883, chap. 408</p> <p>The complaint in this action alleged that the defendants, by wrongfully preventing the flow of waters of a stream and by their negligent discharge, damaged the plaintiffs lands adjoining the stream. Held, that neither Laws 1882, chap. 176, nor Laws 1883, chap. 408, applied to the case.</p> <p>3. Same—Laws 1880, chap. 538, § 3.</p> <p>The allegations of the complaint were a careless, negligent and unnecessary filling up and overflowing of the stream by reason of a careless, wrongful and negligent discharge of the water. Held, that these were acts for which Laws 1880, chap. 533, made no provision, and that section 3 of said act did not protect a person using a stream as permitted by that act from an action for damages.</p>

<p>Appeal taken from the judgment of the county court, reversing the judgment of a justice of the peace of Sullivan, county.</p> <p>The action was upon a note for $125, and interest, on which the complaint admitted a payment of forty-seven dollars. The answer admitted the making and delivery of the note, but alleges a much larger payment on the same than admitted by the complaint. Also alleges that the note was given for the purchase price of a horse bought of plaintiff by defendant, which was warranted sound and all right, and alleges a breach of such warrant. The justice gave judgment to the plaintiff for the balance appearing due on the note, less the amount of payment as admitted, The defendant appealed to the Sullivan county court, where the judgment was reversed, and the plaintiff appeals, to this court.</p>

<p>1. Contract—Construction—Within what time to be performed.</p> <p>By the terms of a certain contract the defendant company agreed to deliver to the plain tiffs 3,000 tons of iron in Pittsburg during the “spring and summer ” of 1880. JMd, the said company was not in default for not delivering the iron until the 1st of September, 1880. That in the ahsence of an express provision in the contract requiring frequent or continuous delivery, the whole 2,000 tons could have been delivered on the last day of the summer.</p> <p>3. Same—Damages—Evidence—How restricted.</p> <p>Held, that the evidence as to the amount of damages must be directed to the difference in value of the iron at the contract-price on the 1st of September, 1880, and the actual market value at that time.</p> <p>3. Same—Evidence—What competent.</p> <p>It was competent for either party to put in evidence the value of iron of the description called for in the contract at or about the time of the breach by the defendant. t</p>

<p>1. Easement—When attaches to servient estate.</p> <p>One Noadiah Moore owned the land through which a stream flowed and had erected a dam. thereon which supplied water power to his mill. Certain others, Pliny and Amasa C. Moore, owned land below, on which they too had a dam and mill. For the purpose of constructing a new mill privilege, Noadiah re opened the canal, which passed through his land to his mill; and Pliny and Amasa C. constructed through their land a new canal from the end of Noadiah’s canal to the lower point where the power was to be used, and certain land was conveyed to Noadiah near the end of the new canal. As to the maintenance as well as to the construction of these several parts needed for the new privilege, it was agreed that Noadiah and his heirs and assigns should maintain, repair and rebuild the dam and the old ditch which were on his land, and that Pliny and Amasa 0., their heirs and assigns, should maintain and keep in repair the new ditch, which was on their land. Meld, that the agreement that the dam should be repaired by Noadiah, his heirs and assigns, attached the burden of repairing upon the old privileges; that is, on the servient estate, and not on the new.</p> <p>'3. Same—When runs with the land oe servient estate.</p> <p>Meld, That an easement over Nodiah’s land was granted. That the covenant to repair and rebuild the things necessary for the enjoyment of that easement, was for the protection and support of that easement, and, therefore, ran with the land.</p>

The action was for a personal injury to the plaintiff, caused by a fall upon the sidewalk in Wilson street, in said city, claimed by plaintiff to have been occasioned by the negligence of the defendant in suffering ice to accumulate and remain on such sidewalk. The defense was a denial of negligence on the part of the defendant, and an allegation of contributory negligence on the part of the plaintiff.

<p>Referee—Action tried before—Consideration of on appeal.</p> <p>Where the issues in an action are sent to a referee to hear and determine if the evidence is balanced, and it can be seen by an appellate court that inferences drawn from the appearance and manner of testifying of witnesses might move the scale toward the fact testified to, it may be assumed that such circumstances, proper for the consideration of the referee, were present and affected his determination as to the degree of credit to be given them.</p>

<p>Appeal from a judgment granting a bill of interpleader.</p>

<p>1. Arrest—Order op—Grafted under Code Civ. Pro., § 550, subd. 2, PRIOR TO THE.PASSAGE OP LAWS 1886, CHAP. 672, IS NOT ANNULLED THEREBY.</p> <p>An order of arrest made under Code Civil Procedure, § 550, subd. 2, prior to the amendment of that section by Laws 1886, chap. 672, is not annulled by the passage of that act.</p> <p>2. Costs—Stay op proceedings for non-payment op—Code Crv. Pro., § 779.</p> <p>Under Code Civil Procedure, § 779, a party who for ten days after the service upon him of an order by which he is directed to pay the costs of a motion neglects to pay the same, is stayed in his proceedings, except such as may be taken by him to review or vacate the order. Held, this exception did not include proceedings to set aside an execution against the person.</p>

<p>Appeal to court op appeals—Amount in controversy—Code Civ. Pro., § 191.</p>

<p>Motion for reargument.</p>

<p>Appeal from order of supreme court, general term, second department, dismissing relators proceeding for writ of certiorari. In 1886, the relator being the owner of certain •real estate, petitioned the respondents that said property be exempted from taxation on the ground that it was an almshouse. The petition being denied and the property assessed, relator brought proceedings for certiorari.</p>

<p>Appeal by defendant from an order of the city court of ■ Brooklyn denying a motion to dismiss plaintiff’s complaint.. This action was brought August 2, 1885, and on August tenth defendant obtained an order directing plaintiff to file an undertaking for costs in the sum of $250, or to deposit that sum together with a stay of proceedings. Plaintiff was unable to do either, and defendant served notice of? motion for a dismissal of the complaint. Before the motion came on to be heard plaintiff obtained an order allowing him to prosecute as a poor person, and when the motion came on the court refused to dismiss the complaint.</p>

<p>Appeal—Where appellants not aggrieved.</p> <p>Where, in case a judgment were reversed, none of the appellants would be benefited, and the defendant, who would be benefited, was debarred by his own agreement from appealing, their appeal will be dismissed. Plaintiff brought this aclion as receiver, to set aside a deed made by Dusenbury, through Honeywell, to his wife, and a mortgage made thereon to Chichester, and assigned to Dusenbury, as administrator of the estate of Thomas Dusenbury. There was also money in the hands of the county treasurer, surplus of the foreclosure of a mortgage subsequently given by Mrs. Dusenbury on the same premises. Plamtiff obtained judgment declaring the conveyances and the mortga ire to Chichester to be fraudulent and void as against his judgment-creditor, William W. Dusenbury, in order to obtain a stay pending the appeal to the general term herein, stipulated, that his. claim to the surplus moneys in the foreclosure should abide the result of the appeal in the city court, aforesaid, and that he, the said claimant, shall be bound by said appeal.</p>

This action was brought by the plaintiff to recover the amount claimed to be due them from the defendants under a contract dated the 29th day of April, 1884, between the plaintiff and defendants, by which the plaintiff agreed to transport all the lumber of the defendants by boats from Bouses Point to the city of New York and points named in the contract during the season of navigation, via Champlain canal.

<p>Practice—Certiorari—When issued—To review cancellation oe a DEED BT STATE COMPTROLLER—LAWS 1873, CHAP. 130—CODE ClVTL PROCEDURE, § 3133.</p> <p>Until a rehearing before the state comptroller has been had, of his determination to cancel a deed made by him of land on a tax sale, pursuant to chapter 130 of the Laws of 1873, a writ of certiorari to review said determination is prohibited by Code Civ. Pro., 3133.</p>

<p>Duress—Money obtained to keep husband out oe jail—Compounding a FELONY.</p> <p>Before a man can be permitted to retain $150 which he has obtained by working on the sympathy of a woman who fears that her husband may be sent to jail (especially where the claim against the husband is only twenty-six dollars), he should show to the satisfaction of the jury that the woman knew that she was paying the money to induce him to compound a crime. If the jury should believe that she thought her husband was arrested in a civil action, then they could not hold her culpable in paying the money. And they might find she paid it under duress. Landon, J., dissenting.</p>

<p>1. Bills and notes—Evidence—Possession.</p> <p>The possession oí a note is prima facie evidence of delivery, and in the absence of proof to the contrary, the court must hold that it was delivered. It is also sufficient evidence prima facie of consideration.</p> <p>2. Same—Evidence—Varying a written contract.</p> <p>Evidence was oSered to prove an oral agreement made at the time of the giving of the note in question, to change the time of payment. Held, incompetent, as it would vary a written contract.</p> <p>3. Same—Effect of word " surety " preceding name of maker.</p> <p>The defendant was liable, as maker of the note, although the word “ surety” preceded his signature.</p>

<p>Appeal from an order of special term granting a mandamus requiring the defendant to take certain action as to a road.</p>

<p>1. Legacy in satisfaction of a debt—Wild.</p> <p>The will of testator directed his executor to reduce his entire estate to money and dispose of the proceeds as follows: “ Tirst. My wife to receive $100 in cash.” * * * “ Third. My mother to receive the sum</p> <p>of $1,650, being the amount of borrowed money due her, also interest on the same as may appear by my note held by her for above amount.” Held, that the third clause gives a legacy in satisfaction of a debt.</p> <p>2. Same—Statute of limitations—Code Civ. Pbo., § 1819.</p> <p>The mother died shortly after the son. And the executor of testator filed his account when it was objected that the claim of the mothePs executor for the balance of the $1,650 remaining unpaid was barred by the statute of limitations. Held, that under Code Civ. Pro., § 1819, the statute had not commenced to run against the representative of the deceased legatee.</p> <p>3. Same—Statute of limitations—What constitutes a fabtial payment SUFFICIENT TO TAKE A CLAIM OUT OF THE STATUTE.</p> <p>Within four years of the filing of said account the executor of the testator and of the deceased legatee had with each other certain personal business transactions upon the settlement of which it was ascertained that the latter was indebted to the former in a certain sum. The testator of the said legatee, with the approval of the executor of testator, credited his estate with payment of a like sum in part satisfaction of the a'oresaid claim of the testator’s mother. Held, that even if the claim be regarded, not as a legacy, but as a debt, the above payment took it out of the operation of the statute.</p>

<p>1. Gift inter twos of policy of life insurance—Proof of.</p> <p>The mother and father of decedent executed a mortgage on a certain farm which they held as tenants in common. This mortgage was given as-security for a bond on which $3,000 was raised and given 1o the decedent to help him start in business. Within a few days decedent had his life insured for $3,000. There was evidence tending to show that when he obtained the insurance he said he was going to give it to his mother and asked to have a blank for assigning- it obtained. That he gave it to his mother saying it was a gift, and it was in her possession at his death. Held, there was sufficient evidence to hold that it was a gift inter vinos.</p> <p>2. Surrogate—Power to investigate disputed claim, etc.</p> <p>Surrogates have not the power to investigate the merits of disputed claims against estates. They have, however, the right to determine-whether administrators have been guilty of negligence in getting together the property belonging to an estate, and whether they have failed, to collect debts which they ought to have collected and whether they have acted prudently.</p> <p>3. Same—When administrator not compelled to litigate a claim.</p> <p>. Where it appears that the administrators have acted in good faith upon the advice of able counsel and are of the opinion that a claim is not recoverable, the administrators will not be charged with the amount of' the claim or compelled to prosecute it.</p> <p>4. Administrators’ right to money in bank—When bank can retain it.</p> <p>The intestate, prior to his death, directed the bank where he had deposits to apply the amount he then had on deposit toward the payment of certain notes held by the bank, but not then due. Held, that the-amount not being sufficient to pay the said notes the bank could not be compelled to pay the money over to the administrators nor could they be sur-charged with the amount.</p> <p>5. Same—When bank cannot retain it.</p> <p>There was a deposit made subsequent to said conversation and direction and not drawn out. Held, that the administrators were entitled to recover-the amount of said la^-t deposit from the bank. That the bank could not retain it to pay the said notes when they became due.</p> <p>6. Auctioneer’s fees—How much administrator can pay—Rev. Stat.,. (7th ed.) 1275, § 23.</p> <p>An administrator should not pay an auctioneer more than two and a half per cent of amount of the sales as commissions for selling, see Rev. Stat. (7th ed.) 1275, § 23.</p> <p>7. Attorneys—Rule as to employment by administrator.</p> <p>The administrator should adopt the same business rules in dealing with his attorney that individuals do in their private affairs.</p>

<p>1. Collateral inheritance tax—What property subject to.</p> <p>It was intended by chapter 483, Laws of 1885. to subject to taxation all property within this st te passing by will (to other than certain excepted persons) without regard to the residence of the ancestor.</p> <p>2. Same.</p> <p>Hannah Enston died a resident of the city of Philadelphia, leaving assets in the county of Kings. The original will was admitted to probate in the surrogate’s court of Kings county. Held,, that both real and personal property within this state, passing by the will of the testatrix, is subject to the tax.</p>

<p>1. Trustee—Cannot without leave of court purchase trust property.</p> <p>A trustee cannot without special leave of the court, purchase the property of his trust, and unless the beneficiary chooses to affirm such a purchase it will be disregarded upon his demand.</p> <p>3. Same—What circumstances necessitate the setting aside of such PURCHASE.</p> <p>A testatrix left her surviving as her next of kin, residuary legatees and devisees, four daughters, and the children of another daughter, deceased. By the will, two sons-in-law of the testatrix were made her executors, and two unmarried daughters her executrices. All qualified and joined in an account which set forth among other things, that pursuant to a power in the will, they had sold certain real property, and were chargeable with certain specified sums, the proceeds of said sale. This account was judicially settled, the infants being represented by a special guardian. Subsequently, a motion was by him made that the decree settling the account be set aside and vacated, alleging as grounds for such motion that within .a brief period after the accounting parties had conveyed the above mentioned real property, the grantee had conveyed to the four daughters of the testatrix, two of whom were her executrices. Held, That conceding the transactions by the representatives of the deceased to have been in good faith, the formalities of the sale correctly observed, and the purchase price given to have been commensurate with the value of the property, yet if the transfer made by the grantee were made in pursuance of an agreement or understanding between himself and his grantees, the application should be granted</p> <p>3. Same—Reference to ascertain circumstances of purchase.</p> <p>This latter circumstance being in doubt. Held, That a reference should be ordered to ascertain whether such agreement or understanding actually existed.</p>

<p>Mabbted women—When wife justified in leavinq husband—Liability OF HUSBAND FOB SEP abate suppobt.</p> <p>In an action for necessaries furnished to a married woman who had left her husband on the eve of being confined. Reid, that if the jury, from the evidence, believed the state of hostility in which the parties at that time lived was dangerous to the health of the mother and the expected child, ' they were authorized to find the wife justified in leaving the husband’s house and going to her relatives.</p>

<p>1. Pleading—Complaint—Demurber—Sufficiency of complaint</p> <p>In an action brought for the specific performance of a contract for the sale of land, the complaint averred an agreement between the parties which was set forth at length and annexed to the complaint. By the agreement itself the defendant’s name purported to have been signed through one Edward A. Lovell.' On demurrer because the complaint did not state facts sufficient to constitute a cause of action; Held, the complaint was good that if the attorney had no power, that must be averred by way o” answer Buffalo Union v. Bitter, 87 N. Y., 250, distinguished.</p> <p>2. Same—When receipt of benefits binds party receiving.</p> <p>The complaint also averred a part payment of the purchase money and an acceptance by her. Held, that if the defendant knew of the agreement being made in her name and took the benefits of it she is bound by the agreement.</p>

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

<p>Negligence—Contributory negligence—Boarding a ferry boat.</p> <p>In an action to recover damages for an injury resulting in the death of intestate, received while boarding one of defendant’s boats, it appeared that there was a storm of rain, mingled with snow, at the time of the disaster, and the deceased stepped aboard of the boat as the bridge man was drawing the same up to the bridge, and while there was yet a space between the' boat and the bridge, and as he stepped he slipped, and his foot went down into that space and was caught and crushed. Held, that the intestate was-guilty of contributory negligence, and could not recover. The fatal step of the deceased, taken while the bridge man was in the performance of a, duty in his presence, which would insure his safety, was incautious and careless.</p>

<p>Appeal from a judgment entered on a decision rendered at the Orange county special term, granting the plaintiff an injunction prohibiting the defendants from drawing the water in a certain pond below a certain level, etc.</p>

<p>Contract—Construction of.</p> <p>The plaintiffs and others owned certain lands, which all the owners agreed to sell to one Leon De Bost, and they also agreed to pay one Augustus De Bost a certain sum as commissions for the sale thereof. There being a question made as to the title of one of the other owners, the purchaser refused to take the title until the difficulty was removed. The defendants bought the plaintiffs’ interest in said land, and in the contract for the purchase was inserted the following: “ And also the parties of the first part (the defendants), jointly agree to protect and preserve harmless, the said parties of the second part (the plaintiffs), from any and all liability and damages arising from and under this sale of this land, by reason of any contract made with Leon B. De Bost.” * * Augustus sued, and recovered a judgment against the plaintiffs for the proper proportional part of the commission as upon a good sale.. The actions were separate, and in each case De Bost got judgment. These judgments were reversed at the general term, but at a large expense. Held, that the contract covered the costs of defending against the claim of Augustus.</p>

<p>1. Negligence—City of Brooklyn—When proof sufficient to go to jury.</p> <p>In an action for damages resulting from the “blowing out" of a fire hydrant, in the city of Brooklyn. Held, that when an accident in the-ordinary course of events would not happen without great neglect, the facts proven to that end may go to a jury.</p> <p>3. Same—Liability of city of Brooklyn under Laws 1873, chap. 863. title 19, § 37.</p> <p>Laws 1873, chapter 863, title 19, § 37, does not exempt the city of Brooklyn from liability when the injury results from work done, originally" defective or continued after notice. Following Seifert v. City of Brooklyn. 101 N. Y„ 136.</p>

<p>Appeal from the decree of surrogate’s court of Kings county, admitting a will to probate</p>

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

<p>Negligence — Street railroad — Overcrowding — Riding on front PLATFORM.</p> <p>The plaintiff gave up his seat inside the defendant’s street car to his wife, and found it so uncomfortable by reason of the crowded condition of the car, permitted by the defendant, that he was obliged to seek a place upon the front platform. Erom this he was pushed by other passengers and injured. By reason of the crowd the driver was unable to use the brake td avert the injury. Held, plaintiff was not guilty of contributory negligence in riding on the front platform under the circumstances, and that the defendant was guilty of negligence in allowing the overcrowding.</p>

<p>Appeal from a judgment declaring the legacy of $2,000 given to J. S. Benjamin a charge upon the real estate of which Mr. Seaman died seized.</p>

<p>1. Practice—Examination of party before trial.</p> <p>Order for the examination of a party before trial can be granted ex pwte and requires no notice,</p> <p>3. Same—Affidavit—When sufficient.</p> <p>The complaint in the action was for the board of the defendant, with rooms. The answer averred payment. The affidavit for the examination of defendant before trial, stated that the testimony of defendant was material and necessary to the defense in the action, that the payment in full relied upon by the defendant as a defense, was made in part by said defendant, and “as to that, he, and he alone can testify, and his testimony is absolutely necessary to prove said defense.” Held, That the affidavit was sufficient to obtain an order to examine a party.</p> <p>3. Vacating ex" parte order—Code Civ. Pro., § 773.</p> <p>The judge who makes an ex pwrte order has the right to vacate it ex parte under Code Civ. Pro., § 773.</p>

<p>Appeal from a judgment entered at circuit in favor of plaintiff. Action tried without a jury.</p>

<p>Appeal from an order denying a motion for a writ of mandamus.</p>

<p>Appeal from an order made at special term vacating an order made ex parte enjoining the enforcement of a judgment for costs.</p>

<p>Appeal from an order appointing a receiver of the assets of a co partnership pending its dissolution.</p> <p>The seventh section of the articles of copartnership was as follows: Upon the dissolution of said co-partnership, if both parties shall be living and in health and mental faculties suitable for the transaction of business, either party may make in writing an offer to the other of the price at which he will buy the interest of the other, or sell to the other his own interest at the same price; and such other party shall within twenty days thereafter signify his election whether he will buy or sell at such price, and if he shall fail to do so by notice in writing within that time, the party making such offer may within twenty day after the expiration of the time herein limited to such other party to accept such offer, buy or sell at his own election according to his said offer.</p>

<p>Appeal from a judgment entered upon the verdict in favor of defendant, and from an order denying a motion for a new trial,</p>

<p>1. Pleading—When complaint sufficient.</p> <p>The complaint stated that the plaintiff was a judgment-creditor of one. Rosenberg, having an execution in the sheriff’s hands; that the judgment, debtor for the purpose of defrauding his creditors permitted his son and the defendant impleaded herein to recover judgments which were'prior in lien to the plaintiff’s judgment, both upon the real and personal estate. It also contains an averment that the said judgment-debtor assigned all his property to pay his debts to'the assignor which assignment (if not fraudulent), was prior in right to plaintiff’s judgment, and that the said assignment was void for fraud. Held, the complaint was sufficient as a matter of pleading.</p> <p>S. Same—Injunction—Affidavit.</p> <p>The affidavit in support of the application for an injunction beyond alleging the insolvency of the defendant alleged only that certain personal-property after the sale thereof by the sheriff, under the said executions, was bid in by each of the judgment-creditors and that they had not removed the same from the possession of the judgment-debtor. Held, there was no ground for an injunction against the sheriff’s paying over the proceeds of the sale. That the price paid for the goods at the sale was of no-importance. That the non-removal of the goods was not fraud in fact.</p>

<p>Appeal from an order denying injunction and granting leave to file supplemental answer.</p>

<p>1. Highways—Opening of, through an orchard—Laws 1873, chap. 773, 1 Rev. Stat. ¡ 514, § 57.</p> <p>Chapter 773 of Laws 1873 have so amended 1 Rev. Stat., 514, § 57, that a road can be opened through an orchard without the consent of the-owner. The commissioners of highways must make the certificate as to the necessity of the road and their decision must-be affirmed by the county judge and his order be confirmed by the general term of the supreme, court as provided for in Laws 1873</p> <p>2. Same—Jury not necessary.</p> <p>There is no provision for a jury to pass upon the necessity of said road, and none is necessary</p>

<p>Negligence—Master and servant—Evidence—What admissible.</p> <p>In an action to recover damages for injuries received while operating a printing press belonging to the defendant, which injury was alleged to have happened by reason of the defendant’s negligence in furnishing a defective machine; Held, that it was competent to show that the same machine had exhibited the same defect resulting in a similar injury at a time long previous to the occurence of the injury in suit.</p>

<p>Appeal from a judgment in favor of defendant entered on a non-suit.</p>

<p>Appeal from an order of arrest granted in favor of plaintiff upon the complaint and affidavit of plaintiff.</p>

<p>1. Receiver of railroad—Insolvency proceedings—Debts.</p> <p>Where the invalidity of a mortgage given by a certain railroad, consisted' in the fact that more stock was issued than the aggregate stock of the company, the company having obtained the money could not destroy the debt. The debt remained as an unsecured debt, and was properly considered as-such in proceedings for the appointment of a receiver of the corporation as being insolvent.</p> <p>3. Same—Evidence of principal office.</p> <p>Where the articles of merger of certain railway companies declared that the principal office of Che corporation “ shall be in the city of New York;" the corporation reported to the railroad commissioners that the general office of the company was in New York, and the transfer and stock books, and the accounts of all receipts and disbursements were kept there, and the directors were elected in that office styled in the certificate, the office of the company." ■ Meld, conclusive evidence that the principal business-office of the company was in New York city.</p> <p>3. Same—Who competent to act.</p> <p>A strong feeling in favor of the action constitutes no objection to a receiver.</p>

<p>Appeal from an order dismissing a motion for an order to examine a judgment debtor in proceedings supplemental to execution.</p>

The complaint stated that plaintiff, from July, 1881, to July, 1882, carried on the business of refining oil and manufacturing lubricating oils, owning lands ana extensive machinery, etc., employing skilled labor, etc., etc., and doing an extensive business. That the Standard Oil Company, of Cleveland, Ohio, up to that time controlled the business of refining oil.

Appeal Horn supreme court, general term, fifth department. Action for damages sustained by the defective condition of a sidewalk in the village of Hornellsville. The claim was presented to and rejected by the board of trustees.

<p>Stay of proceedings—Authority for order.</p>

<p>Receiver—Order appointing—Power under order.</p>

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

<p>Appeal from order denying motion for further account.</p>

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

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

<p>Appeal from order dismissing writ of habeas corpus,</p>

<p>Exceptions ordered to be heard in the first instance at the general term.</p>

<p>Negligence—When complaint properly dismissed—Duty or person as TO CROSSING RAILROAD TRACK.</p>

<p>Appeal from order denying motion to punish defendant for contempt.</p>

<p>Practice—Suppression or commission.</p>

<p>Appeal fiom a judgment on trial at circuit without a jury.</p>

<p>Appeal from order of special term vacating a .achment.</p>

<p>Appeal from order denying motion to strike out a reply.</p>

<p>Broker—Authority to sell stock.</p>

<p>Jurisdiction of court to consolidate actions.</p>

<p>Motion for re-argument or liberty to go to the court of appeals.</p>

<p>Negligence—Oontbibutoby Negligence.</p>

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

<p>PlSHEBY—GBANT OF EXCLUSIVE BIGHT OF FISHING.</p>

<p>Statute of limitations—Claim for value of service rendered to decedent—Rejection of same.</p>

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

<p>Practice—New parties.</p>

<p>Appeal from an order confirming the report of a referee and releasing the sureties of an assignee.</p>

<p>Common carrier—Non-delivery op parcel—When not liable.</p>

<p>Will—Proof of execution—Testamentary capacity.</p>

<p>Rearg-ument—When allowed.</p>

<p>Practice—Appeal—Code Civ. Pro., § 1316.</p>

<p>Appeal from a judgment entered upon the report of a referee upon a proceeding to enforce a claim against a decedent’s estate.</p>

<p>Liability of city for work done—When failure to perform work WITHIN TIME FIXED EXCUSED.</p>