Volume 83 — New York Reports

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made February 6, 1880, reversing an order of Special Term, which confirmed the report of a referee appointed to pass the accounts of plaintiff as receiver, and" awarded the funds in his hands to himself as plaintiff. (Reported below, 20 Hun, 11.)</p> <p>On or about October 3, 1877, the plaintiff commenced this action to foreclose a-mortgage executed to him by the defendants, Peyser and wife, upon a leasehold interest in two lots of land in the city of Hew York.</p> <p>On the 26th day of December, 1877, upon the consent in writing of the defendant Peyser and his attorney, and upon application of the plaintiff, an order was entered appointing plaintiff receiver of the rents, issues and profits of the mortgagéd premises, which order contained the following provisions, viz.: “ That as such receiver he (plaintiff) have power, which is hereby given to him, to rent and manage said buildings and premises, and to rent the same or any part thereof from time to time for terms not exceeding one year, to collect and receive the rents thereof, and out of the same to keep said buildings insured against loss or damage by fire and in repair, and to pay the ground rent and taxes,” etc.</p> <p>In pursuance of this order the plaintiff collected the rents of the premises from January to October, 1878. On Hovember 18,1878, upon plaintiff’s application, an order was made at Special Term, referring it to a referee to take and pass the accounts of the plaintiff as receiver, reserving the question as to the disposition of the money in his hands until the coming of the referee’s report. The plaintiff, as receiver, accounted before the referee, and his account was passed and allowed, showing a balance in the hands of the plaintiff of $589.05, allowing him $100 credited as payment for counsel fees. Exceptions were taken to the referee’s report; plaintiff made a motion to confirm the report, and for an order permitting him to apply the, balance in his hands to the payment of the amount due him upon his bond and mortgage. The motion was opposed by the defendants, and by Adolphus H. Maas, who presented to the court a petition and a notice of motion, asking that the plaintiff be required to pay the balance of the moneys in his hands as receiver to the petitioner.</p> <p>Said petition showed the following facts: Maas, being the owner of two mortgages upon the premises, which were liens prior to that of the plaintiff, on the 1st day of March, 1878, commenced actions to foreclose the same. On the 8th day of October, 1878,"a decree of foreclosure and sale was duly entered in said actions. On October 31, 1878, Maas became the purchaser of the premises at a referee’s sale under the decrees, at a sum less than the amount due to him. At that time the ground rent for the quarter ending October 31,1878, amounting to the sum of $105, and the taxes for the year 1876 ($448), for the year 1877 ($424), and for the year 1878 ($408), had not been paid. Whereupon Maas applied to plaintiff, requesting him to apply the moneys in his hands, as receiver, toward the payment of said ground rent and taxes, which plaintiff refused to do. Afterwards Maas paid the ground rent and the taxes for 1876 and 1878.</p> <p>The order of General Term reversed the order of Special Term, sustained an exception to the allowance of the $100 counsel fees, charged plaintiff with the balance as found by the referee adding said sum, required plaintiff to pay the taxes for the year 1877, with interest, and the fees of the referee, and to pay over the balance, with interest on the whole sum from January 31, 1879, to Maas or his attorney.</p> <p>A junior mortgagee who commences an action for the foreclosure of his mortgage, and in that action, upon his own motion, and at his expense, procures the appointment of a receiver of the rents, thus sequestrates the rents, and is entitled to the benefit of his superior diligence over his senior mortgagee. (Howell v. Ripley, 10 Paige, 43; Post v. Dow, 4 Edw. Ch. 412; Washington Life Ins. Co. v. Fleischauer, 10 Hun, 117; Bank of Ogdensburg v. Arnold, 5 Paige, 38.) Even a receiver of the property of a judgment debtor is not vested with any title to the real estate, owned by the judgment debtor, nor does a purchaser from such a receiver acquire any interest therein. (Scott v. Elmore, 10 Hun, 68; Chautauqua, Bank v. Risley, 19 N. Y. 369; Foster v. Townshend, 68 id. 203.) One who purchases property subject to a mortgage, which forms part of the consideration of his purchase, is estopped from contesting the validity of the mortgage, for the reason that he purchased a mere equity in the premises over and above the amount of the mortgage. (Hartley v. Harrison, 24 N. Y. 170.)</p> <p>The order of the court appointing the plaintiff receiver was a mere confirmation of the defendant’s consent, and plaintiff should, therefore, be treated in equity as a mortgagee of a lease in possession. (Astor v. Hoyt, 5 Wend. 603.) The principle upon which the courts appoint a receiver for the benefit of a junior incumbrancer, and give him the benefit thereof, as against a prior incumbrancer of the mortgagor, is because of the insolvency of the mortgagor and the inadequacy of the security to pay the mortgage debt; which facts must be stated in the application. (Post v. Dow, 4 Edw. Ch. 412, 413.) The equitable doctrine of subrogation should be applied, as it has been applied by this court. (Cole v. Malcolm, 66 N. Y. 366; Cottrell's Appeal, 23 Penn. St. 294; Lidderdale's Exrs. v. Robinson's Admr., 2 Brockenbrough, 159.)</p>

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was in the employ of defendant as a brakeman, and while in the discharge of Ms duties the brake he was operating gave way, and he was thrown from a car and injured. The further facts appearing on the trial are set forth sufficiently in the opinion.

(Reported below, 13 J. & S. 158.) This action was brought to recover ' damages for an alleged breach of contract. Held: “ either in their own right or in trust for others, with full power of disposition,” 36,000 shares of the capital stock of the Pacific railroad of Missouri; that the defendant, Garrison, held $2,200,000 out of an issue of $4,000,000 of bonds issued by the said Pacific railroad,- known as “Third Mortgage Ronds;” that said bonds were…

The decision of the General Term was made February 13, 1879. (Reported below, 18 Hun, 44.) The nature of the action and the facts are set forth sufficiently in the opinion. Plaintiff cannot recover where the facts and circumstances are such that they ought to have excited suspicion and led to inquiry. (Williams v. Brown, 15 N. Y. 351; Heulich v. Brennan, 11 Hun, 194.) Plaintiff could not maintain this action even if it had given credit, relying on the report.

(Reported below, 13 J. & S. 328.) The nature of the action and the facts are set forth sufficiently in the opinion. Plaintiff, being a stockholder, was entitled to share equally in the dividend with the, other stockholders. (Jones v. Terre Haute & Richmond R. R. Co., 57 N. Y. 196; Luling v. Atlantic Mut. Ins.

Said order was granted on motion of a referee appointed in this action, and directed the plaintiff to take up said referee’s report, and pay to him his fees within twenty days, etc. A notice pursuant to the Code of Procedure, if no stipulation of waiver is entered into, is all that is required to end a reference.

Special Term. This was an action to foreclose a mortgage. The material facts appear in the opinion. The mortgage is equally good with or without a bond, and plaintiff is entitled to a decree of foreclosure, whether a bond exists Or not. ( Goodhue v. Berrien, 2 Sandf. Ch. 630.) The bond being absent, the mortgage will be presumed to have been paid. (Bauder v. Snyder, 5 Barb. 63 ; Flagg v. Ruder, 1 Bradf. 193.)

(Mem. of decision below, 18 Hun, 400.) This action was brought to foreclose a mortgage. The material facts appear in the opinion The dissolution of the partnership of David Moore & Co. by the death of Moore put an end to the authority of the survivor to bind the firm by any new engagement. (Van Kevren v. Parmelee, 2 N. Y. 524, 533; Natl.

This action was brought to recover the amount of a check drawn by Lloyd Canaday, plaintiff’s assignor, payable to the order of defendant, which the complaint alleged was delivered to him to be- used to purchase a draft to be sent to the drawee, instead whereof defendant drew and retained the money. The substance of the answer and the material facts appear in the opinion.

This action was brought to recover for goods alleged to have been sold and delivered to defendants, at different dates, by the firm of Zimmerman & Co., composed of the plaintiffs, on a credit of four months. The defenses interposed and the material facts are set forth substantially in the opinion. This action could not be maintained while the first action was pending, as the entire account was past due and constituted but one cause of action.

(Mem. of decision below, 17 Hun, 128.) The nature of the action and the material facts are set forth in the opinion. The power to apply the money realized from the collaterals devolved upon the court. (Bridenbecker v. Lowell, 32 Barb. 9 ; Blackstone Bk. v. Hill, 10 Pick. 129; Cowperthwaite v. Sheffield, 1 Sandf. 416 ; affirmed, 3 Comst. 243.) The indorsers, or those jointly liable with Witherell, have an equal right to claim the proper legal application of the payments.

<p>The will of R. gave to plaintiffs certain legacies, payable after the debts of the testator had been discharged. Plaintiffs brought this action for an accounting by certain of the defendants, as executors and trustees under said will, and for a payment of the amount found due, out of the property in their hands; or, if this proved insufficient, out of the real estate in the hands of the other defendants, “ so far as the same might be applicable.” The referee found that the testator was insolvent, that the real estate in question was sold to pay debts and the complaint was dismissed. Defendants' appeared by different attorneys, and an extra allowance of costs was made to each. Held, error; that the facts furnished no basis on which an extra allowance could be computed under the provision of the Code of Procedure in reference thereto (§ 309), as there was no “ recovery,” or “ claim ” for the payment of any fixed sum, and “ the subject-matter involved ” was plaintiffs’ interest when ascertained, which proved to be nothing.</p>

This action was brought against defendant, a stock broker, to recover damages for alleged unauthorized acts, negligence and want of skill as agent of plaintiff in a stock transaction, the particulars of which and the material facts are set forth in the opinion. Where a judge leaves it to a jury to infer a fact not warranted, it is error, and a new trial will be granted.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered July 30,1879, affirming a judgment in favor of defendant, entered upon an order sustaining a demurrer to plaintiff’s complaint.</p> <p>The .substantial allegations of the complaint and the grounds of the demurrer are set forth in the opinion.</p> <p>The law authorizing the assessment being unconstitutional and void it was invalid and it was not necessary to bring an action to have it vacated. (Stuart v. Palmer, 74 N. Y. 183, 188; Wells v. City of Buffalo, 21 Alb. L. J. 234; Townsend v. The Mayor, 77 N. Y. 542, 546; Bank of Commonwealth v. Mayor, 43 id. 184; Peyser v. The Mayor, 70 id. 497; Kamp v. Kamp, 59 id. 212; Newman v. The Supervisors, 45 id. 676, 688.) The reference in the complaint to the acts relating to the assessment is as effectual as if they were set out at length. (Code Civ. Proc., § 530.) Notwithstanding the invalidity of the assessment the bonds issued by the supervisor under the same acts were valid obligations and the defendant was liable thereon. (Knapp v. Town of Newtown, 1 Hun, 268 ; Marsh v. Town of Little Valley, 64 N. Y. 112; Moore v. The Mayor, 73 id. 238, 251; Howell v. City of Buffalo, 37 N. Y. 267, 272.) The defendant’s bonds having been issued to defray the expense of constructing a highway in the town were valid, although the construction of the highway was directed by the legislature, and the bonds were issued only through one of the town officers, without any provision being made for obtaining the consent of the citizens or the town authorities, either to the opening of the road or the issue of the bonds. (People ex rel. McLean v. Flagg, 46 N. Y. 401; People v. Batchellor, 53 id. 128, 138; People v. Ingersoll, 58 id. 1, 30; People v. Tweed, 63 id. 202, 207; People v. Banks, 67 id. 568, 575.) The defendant having received the benefit of the money, in the payment of its valid obligations, is liable to refund it to the plaintiff as money had and received to her use. (Hathaway v. Town of Homer, 5 Lans. 267; approved in 64 N. Y. 115, 116; Hathaway v. Town of Cincinnatus, 62 id. 434, 447; Gould v. Town of Oneonta, 3 Hun, 401; affirmed, 71 N. Y. 298; Bank of Commonwealth v. The Mayor, 43 id. 184; Newman v. Supervisors, 45 id. 676, 682.) The defendant has capacity to sue and be sued in and by its town name. (1 R. S. 337, § 1, sub. 1; id. 356, § 1; id. 357, § 2; 2 id. 473, § 95.) It was not necessary to make any demand on the town or present the claim before commencing suit. (Newman v. Supervisors, 45 N. Y. 676, 689; Brown v. Town of Canton, 4 Lans. 409, 411; 1 R. S. 358, § 2; 3 N. Y. S. at L. 302, § 1; Laws 1875, chap. 180; Laws of 1877, chap. 99.)</p> <p>The assessment never having been vacated this action could not be maintained. (Wilkes v. Mayor, etc., 21 Alb. L. J. 32; Peyser v. Mayor, etc., 70 N. Y. 497; In re Lima, 77 id. 170; Rochester v. Rush, 10 N. Y. Weekly Dig. 115.)</p>

' The nature of the action and the facts appear sufficiently in the opinion.' If this action is to he regarded as one brought by Mrs. Clarke alone to recover her separate estate, it. is barred by the statute. (Laws of 1860, chap. 90, § 7; Laws of 1862, chap. 192, § 3.) She was bound to bring her action within ten years after her disability ceased.

The nature of the action and the facts appear sufficiently in the opinion. a The court did not acquire jurisdiction of the infant defendants, as they were not served with the summons either personally or by publication.

66 and interest, for which judgment was rendered. This action was brought to recover damages for an alleged breach of a contract on the part of defendants. The department of docks published a notice to contractors containing the following: “CONTRACTORS’ COPY. Department of Docks, 346 and 348 Broadway.

The nature of the action and the facts are sufficiently set forth in the opinion. The defendant is not answerable in damages to the plaintiff for maintaining the switch in question ; it was the reasonable exercise of a legal right.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 15,1879, affirming a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action was brought upon a policy of fire insurance.</p> <p>The facts pertinent to the questions discussed are set forth sufficiently in the opinion;</p> <p>The house being vacant at the time of and before the fire the policy was avoided. (Paine v. Ins. Co. 5 T. & C. 619; Alexander v. Germania Ins. Co., 66 N. Y. 464; Ashworth v. Ins. Co., 112 Mass. 422.) The knowledge of defendant’s agent that it was vacant did not in any way waive or impair the force of the warranty in the written application, as by the express term of the policy no waiver was good unless by agreement indorsed upon the policy. (Walsh v. Hartford Ins. Co., 73 N. Y. 5; Alexander v. Germania Ins. Co., supra ; Chase v. Hamilton Ins. Co.. 20 N. Y. 52-56.)</p> <p>The condition in this policy as to occupation was waived, as to presume otherwise would be to impute to defendant a fraudulent intent in issuing to plaintiff a policy known by it to be invalid. (Van Schoick v. Niagara Ins. Co., 68 N. Y. 434; Broadhead v. Lycoming Ins. Co., 14 Hun, 452 ; Chase v. Peoples F. Ins. Co., id. 456; McCabe v. Farm Building Ins. Co., id. 604; Cone v. Niagara Ins. Co., 60 N. Y. 619 ; Hill v. Hibernia Ins. Co., 10 Hun, 26 ; Richardson v. Westchester Ins. Co., 15 id. 472; Arthur v. Homestead Ins. Co., 78 N. Y. 465.) A waiver of a condition prospectively operates directly on the terms of the contract by eliminating the condition, and such waiver may be established by parol evidence. (Arthur v. Homestead Ins. Co., 78 N. Y. 465; Hay v. Star Ins. Co., 77 id. 235; Van Schoick v. Niagara Ins. Co., 68 id. 434; Pechner v. Phoenix Ins. Co., 65 id. 195 ; Cone v. Niagara Ins. Co., 60 id. 619; Sheldon v. Atlantic Ins. Co., 26 id. 460; Ames v. N. Y. Union Ins. Co., 14 id. 253; Carroll v. Charter Oak Ins. Co., 1 Abb. Ct. App. 316 ; Insurance Co. v. Slaughter, 12 Wall. [U. S.] 222; Gort v. Natl. Prot. Ins. Co., 25 Barb. 468; Hough v. City Fire Ins. Co., 29 Conn. 10 ; Aurora Fire Ins. Co. v. Kranich, 36 Mich. 289; Devine v. Home Ins. Co., 32 Wis. 47; Viele v. Germania Ins. Co., 26 Iowa, 9.) Describing a house as a “ dwelling house ” is not a warranty that it is occupied. (Browning v. Home Ins. Co. of Columbus, 71 N. Y. 508.) The diagrams and plans of the property were properly admitted in evidence. (Curtis v. Ayrault, 3 Hun, 487.) Defendant is estopped from setting up the condition as to occupation, for the reason that its conduct was such as to induce the plaintiff to forego a formal compliance with it. (McCabe v. Farm Building Ins. Co., 14 Hun, 602 ; Continental Bk. v. Bk. of the Commonwealth, 50 N. Y. 578, and 68 id. 434; Bowman v. Agricultural Ins. Co., 59 id. 521.) The premises were not vacant and unoccupied. (Reynolds v. Commerce F. Ins. Co., 47 N. Y. 597; Rann v. Home Ins. Co., 59 id. 387; McMaster v. Ins. Co. of North Am., 55 id. 222; Clinton v. Hope Ins. Co.. 45 id. 464; Hoffman v. Ætna Ins. Co., 32 id. 405 ; Herman v. Merchants’ Ins. Co., 44 N. Y. Supr. 444; Bryan v. Peabody Ins. Co., 8 W. Va. 605; Westfall v. Hudson River Ins. Co., 2 Duer, 490; Bumstead v. Dividend Mut. Ins. Co., 2 Kern. 81; Insurance Co. v. Slaughter, 12 Wall. [U. S.] 404; Cummins v. Agricultural Ins. Co., 67 N. Y. 260, reversing 5 Hun, 554; Shearman v. Niagara Ins. Co., 46 N. Y. 532; O'Neil v. Buffalo Ins. Co., 3 Comst. 122; Globe v. Continental Ins. Co., 13 Hun, 611; Wait v. Agricultural Ins. Co., 13 id. 371; Paine v. Agricultural Ins. Co., 5 T. & C. 619.) The whole course of conduct of the insurance company should preclude it from now asserting that the policy was void on account of the premises being vacant and unoccupied. (Titus v. Glens Falls Ins. Co., Alb. L. J., Aug. 28th, 1880, p. 174. Decided Court of Appeals, June 15, 1880.) Where, by a policy of insurance, the answers of the insured are made warranties, if a question is not answered, there is no warranty that there was nothing to answer, and in the case of a partial answer the warranty cannot be extended beyond the answer. (Dilleber v. Home L. Ins. Co., 69 N. Y. 256.)</p>

This action was brought originally against Lyman A. Gill, Prior F. Purdy, Francis Cassidy and William Flanigan to recover a balance of rent alleged to be due and unpaid upon a lease executed by plaintiff to the firm of Gill, Purdy, Cassidy & Co., which was composed of said defendants.

(Reported below, 13 J. & S. 385.) This action was brought by- plaintiff to recover a deficiency arising on foreclosure of a mortgage executed to him by defendant Williamson.

Lawrence to the county of Monroe. The nature of the action and the facts are set forth sufficiently in the opinion. This is an action for a penalty. (Merchants' Bk. v. Bliss, 35 N. Y. 412.) The party is to be tried in the county where the act was done by which the liability was incurred. (Leland v. Hathorn, 42 N. Y. 547.) A debt is never local, it is transitory and follows the residence of the debtor.

<p>Motion to vacate and set aside a judgment in this action. The material facts appear in the opinion.</p>

This was a proceeding to disbar an attorney for alleged professional misconduct. The granting of the order appealed from was opposed by said attorney; it directed “ that a commission issue according to the form of proceedings prescribed in article second of chapter nine of the Code of Civil Procedure,” to take the testimony of a witness out of the State.

This action was upon two policies of insurance issued to plaintiff upon two canal boats, one named “ James D. Decker,” the other “ Maggie,” insuring among other things against loss by fire. The only questions upon this appeal were as to the policy upon the “James D. Decker.” The facts pertinent thereto appear in the opinion. Mo notice of the laying up of the boat had been given to the defendant as required by the terms of the policy. (Mead v. Northwestern Fire Ins.

(Reported below, 19 Hun, 310.) The substance of the facts stated is as follows : In actions brought by plaintiff to foreclose mortgages upon lands situate in the county of Kings, judgments of foreclosure and sale were perfected December-18,1878; by the judgments the sales were directed to be made by the sheriff of said county.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, in favor of plaintiff, entered upon an order made September 20, 1876, denying a motion for a new trial, and directing judgment on a verdict. (Reported below, 8 Hun, 292.)</p> <p>The nature of the action and the material facts appear in the opinion.</p> <p>The court erred in refusing to hold that the construction of the bridge and the conduct of the Binghamton Bridge Company, having been sustained by the courts, defendants’ testator was protected thereby, although such decision has since been reversed. (2 R. S. [1st ed.] 602, § 66; 3 id. [3d ed.] 703; 1 Kent’s Com. 476; Brown v. Crowl, 5 Wend. 298; Langley v. Warner, 3 Comst. 327; Simpson v. Hornbeck, 3 Lans. 54; Davis v. Marshall, 14 Barb. 96; Harris v. Jex, 55 N. Y. 421; 66 Barb. 232.) The company having become the owner of land on both sides of the river owned the bed of the stream, and had, even without the special consent of its sovereign, the right to build a bridge on its own. land, spanning the stream, and owed no duty to the public except to refrain from interfering with the navigation of the river. (Ex parte Jennings, 6 Cow. 527, 543; The People v. Gutchess, 48 Barb. 656; The People v. Platt, 16 Johns. 195; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44; 16 Ohio [Griswold], 540; 2 Wis. 308; 4 id. 497; 30 How. Pr. 357, 358; Angell on Highways, §§ 54, 56, 65, 66; Thompson on Provisional Remedies, 248, 240; Yates v. Milwaukie, 10 Wall. 497; 2 Pars, on Cont. 523; Hepbern's Case, 3 Bland’s [Md.] Ch. 98.) As a mechanical structure the bridge and its builders were free from all blame. (Barclay v. The Commonwealth, 25 Pa.; Moody v. B’d of Sup’vrs of N. Co., 46 Barb. 660, 666; Auburn & Cato Plk. Road Co. v. Douglass, 5 Seld. 446; Ely v. Sup’vrs of N. Co., 36 N. Y. 300; 63 Barb. 117; 27 N. Y. 87.) The Binghamton bridge was not a common, public or private nuisance. (4 Black. Comm. 166; Shearm. & Redf. on Negligence, 394; Myers v. Malcolm, 6 Hill, 292; 2 Black. 218; Ft. Plain Bridge Co. v. Smith, 30 N. Y. 62; Lansing v. Smith, 8 Cow. 153; 3 Black. 214; Hilliard on Torts, 632; 18 Barb. 222; 13 J. & S., 646 ; Harris v. Thompson, 9 Barb. 364; Charles Riser Bridge v. Warren Bridge, 11 Pet. 220, 259; Mohawk Bridge Co. v. U. & S. R. R. Co., 6 Pa. 565, note a.)</p> <p>The charter of the Binghamton. Bridge Company was null and void. (Chenango Bridge Co. v. Binghamton Bridge Co., 3 Wall. 71; S. C., 30 How. 358.) The charter, being null and void, could give to Lewis no protection against plaintiff’s claim for actual damages caused by his acts under such pretended charter. (Wood on Nuisances, 788, § 750.) When Lewis built the Binghamton bridge within two miles of plaintiff’s bridge, he was engaged in an unlawful act (3 Wall. 71; 30 How. 346, 358), and the bridge so built being an invasion'of plaintiff’s legal rights, was a nuisance to plaintiff. (Wood on Nuisances, 897, § 867.) The building of the bridge being an unlawful act and a nuisance, Lewis was responsible to plaintiff for any injury plaintiff might suffer by reason of such building, irrespective of any negligence in construction or maintenance. (Losee v. Saratoga Paper Co., 42 How. 392; Irvine v. Wood, 51 N. Y. 224, 487; Hay v. Cohoes Co., 2 id. 159 ; Congreve v. Smith, 18 id. 79, 84 ; Hudson R. R. Co. v. Loeb, 7 Robt. 424; Wood on Nuisances, 111, § 108.) The act under which the Binghamton bridge was built and maintained shows that it was built simply and solely as and for a toll bridge, which was unlawful. (Meeker v. Van Rensselaer, 5 Wend. 397; Aiken v. Benedict, 39 Barb. 400 ; Fry v. Prentice, 14 L. T. [N. S.] 298 ; 3 Hill, 621-624; affirmed, 7 id. 575; 23 Barb. 459; 5 Seld. 450; 13 Wend. 261; 63 Barb. 115; Chipman v. Palmer, 77 N. Y. 56; Wood on Nuisances, 144, § 144.) In any' event plaintiff was entitled to recover for the tolls of which it was deprived by reason of Lewis’ erection and maintenance of this bridge. (Wood on Nuisances, pp. 82, 88, § 77; p. 881, § 842; p. 885, § 850; Thompson v. Gibson, 7 Mees. & Wels. 456; 2 Hilliard on Torts, 417 [3d. ed.] ; Vandenburg v. Truax, 4 Den. 464; Chipman v. Palmer, 77 N. Y. 56.) The judge was right in declining to hold that inasmuch as the courts of this State had sustained the charter of the Binghamton Bridge Company, Hazard Lewis was protected, even though the Supreme Court of the United States had reversed these decisions of our courts. (8 Hun, 292, 295, 296; 3 Wall. 71; 30 How. Pr. 346, 358; Wood on Nuisances, 788, § 750.) The judge was right in refusing to hold “ that this is not a cause of action which survives against the representatives of the wrong-doer.” (63 Barb. 111; 8 Hun, 292; 2 R. S. 447, m. p., § 1; Elder v. Bogardus, Ex., Hill & Den. 116; 2 R. S. 447, § 1, m. p.) The judge was right in declining to hold that the building of the bridge was not in itself an unlawful act or nuisance, and it was only the use of the bridge that was unlawful and a nuisance. (3 Wall. 71; 30 How. Pr. 346, 358; 63 Barb. 111.) The judge was right in declining to rule and decide, that de fendant’s bridge “ was a lawful structure, and that, therefore, the plaintiff cannot recover upon that part of the claim.” (3 Wall. 71; 30 How. Pr. 346, 358; 63 Barb. 111, pt. 3.) The judge was right in declining to charge the jury that plaintiff could not recover for the diversion of tolls beyond a period of six years previous to bringing suit, and that plaintiff is limited to the tolls diverted during such six years. (2 R. S. 448, § 8; 63 Barb. 111 ; Scovil v. Scovil, 45 Barb. 517.) The judge was right in declining to charge that the use to which the Binghamton bridge “ was put does not affect the defendant’s liability for the taking away of the plaintiff’s bridge.” (Angell on Water-courses, § 402; Fish v. Dodge, 4 Den. 311.) An action for the erection of a nuisance does not outlaw, for it is continuous, and is. as if it were a new erection daily. (Rosewell v. Prior, Salk. 459; 12 Mod. 639; Thompson v. Gibson, 7 Mees. & Wels. 456; Fish v. Dodge, 4 Den. 311; Conhocton Stone Road v. Buff., N. Y. & E. R. Co., 51 N. Y. 573, 581, 582 ; Clancy v. Byrm, 56 id. 134, 135; Rosewell v. Prior, 12 Mod. 639.) Executors can be sued for the tort of their testator causing injury to property. (2 R. S. 447, §§ 1, 2; Elder v. Bogardus, Ex., etc., Hill & Den. 116; Mahon, Ex., v. N. Y. C. R. R. Co., 24 N. Y. 458; Scott v. Shepherd, 2 W. Bl. 892 ; McAfee v. Croford, 13 How. [U. S.] 447; Vandenburg v. Truax, 4 Den. 464.)</p>

The nature of the action and the facts appear sufficiently in the opinion. The referee erred in not finding as requested, that defendants were entitled to recover damages.

<p>The fact of the possession and use by one of two tenants in common of personal property, of the property so held, even though it prevents the possession and use by the other, furnishes no ground to the latter for an action for conversion.</p> <p>It seems, however, that if the possession develops into a destruction of the property, or of the interest of the co-tenant, or into such a hostile appro, priation of it as excludes the possibility of beneficial enjoyment, or if it ends in a sale of the whole property, ignoring the rights of such co-tenant, then a conversion is established.</p> <p>A purchaser, however, from the co-tenant who has assumed to sell the whole property is not made liable simply from his purchase and claim to be sole owner.</p> <p>Plaintiff and P. owned a planing machine, which,with the building in which it stood, they leased for a term of years. P. being indebted to defendants gave them, as security, a chattel mortgage upon the whole machine; he informed them, however, at the time, that he owned only half, and plaintiff the other half. The payments stipulated in the mortgage were fixed so as to correspond, in amounts and dates, with the rents reserved in the lease which was looked to, to discharge the mortgage debt. In an action for conversion of plaintiff’s interest, held, that the taking of the mortgage did not amount to a conversion by defendants, conceding that the giving of it was a conversion by P.; that the effect of the mortgage was simply to vest the interest of P., upon default, in defendants.</p> <p>Defendant H. B. S-, after default, removed the machine from the possession of the lessees, claiming a right so to do. It appeared that no demand was made upon him before suit brought, and until after that time he neither did nor said any thing in denial of plaintiffs right as co-tenantUeld, that the taking possession was simply the exercise of defendants’ rights as co-tenants, and neither made the defendants jointly nor H. B. S. individually liable.</p>

(Reported below, 13 J.- & S. 373.) The nature of the action and the facts appear sufficiently in the opinion. The mayor, aldermen and commonalty may be held liable as a tenant at sufferance holding over after the expiration of the term.

(Reported below, 19 Hun, 152.) This was an action for partition. The facts pertinent to the questions discussed appear sufficiently in the opinion. The agreement between the parties and the equities attending the original transaction attached to and followed the mortgages into the hands of the assignees.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 8, 1879, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to compel the delivery by defendants to plaintiffs of nine bonds of defendant, the Missouri, Kansas and Texas Railway Company, of $1,000 each, in exchange for a like number of the bonds of the TeboandKeosho Railroad Company.</p> <p>The facts found are substantially as follows: On the 1st of June, 1870, the Tebo and Neosho Company executed a mortgage on its railroad to defendant, the Union Trust Company, as trustee to secure an issue of 2,000 bonds for $1,000 each; by the terms of the mortgage each of these bonds had to be properly signed and sealed by the railroad company, and also to be certified by the trust company to be one of the series secured by the mortgage before the bond became obligatory on the railroad company. • Each of the bonds contained the following clause:</p> <p>“ This bond shall not become obligatory until it shall have been authenticated by a certificate indorsed thereon, duly signed by the trustee aforesaid.” The attestation clause of each bond was as follows:</p> <p>“ In witness whereof, the said Tebo' and Neosho Railroad Company has caused its corporate name and seal to be hereunto affixed by its president and secretary on the first day of June, 1870.”</p> <p>The railroad company caused the bonds to be prepared and printed on the 13th of June, 1870, and among them were the nine bonds in question. Said nine bonds, with the others, were signed by the president and secretary of .the Tebo and Neosho Company, on or before the 8th day of August, 1870, with the intent and for the purpose of being duly sealed with the seal of such company and then transmitted to the office of the trust company to be certified by said company. The corporate seal was never affixed to said nine bonds and no certificate of the trust company was indorsed thereon. They were stolen from the obligor by some unknown persons; a fabricated seal, in imitation of that upon the genuine bonds, was affixed without its order or knowledge, and the signature to the certificate of the trust company by its president was forged upon them. In that condition they were put upon the market, and in July, 1872, were purchased by the plaintiffs for a valuable consideration, and in ignorance that they were not valid bonds, from a broker claiming to own them, and who sold them as genuine bonds in all respects.</p> <p>Said bonds were missed in the early part of August, 1870, of which fact defendants were advised, but no notice was given to the public by advertisement or otherwise. In October, 1870, the Tebo and Neosho Company was consolidated with defendant, The Missouri, Kansas and Texas Railway Company, to which it transferred its franchises and property. By the consolidation agreement the latter company agreed to take up the outstanding bonds issued by the former by issuing its own bonds in exchange therefor. In July, 1872, plaintiffs left said bonds with the secretary of the M. K. and T. Co. for the purpose and with the request that they should be, exchanged for its bonds in pursuance of the agreement, but said company refused to deliver its bonds therefor. Plaintiffs demanded of both defendants that such exchange should be made or that their bonds should be returned, but defendants refused to do either.</p> <p>There being no omission or defect on the ‘’ace of the bonds affecting their validity and plaintiffs being bona fide holders for value the court erred in dismissing the complaint. (Brainard v. N. Y. H. R. R. Co., 25 N. Y. 496 ; Bank of Rome v. Village of Rome, 19 id. 20; Mercer Co. v. Hackett, 1 Wall. 83; Birdsall v. Russell, 29 N. Y. 220, and cases cited by Russell, argued, 228-230, 232; Finnegan v. Lee, 18 How. Pr. 186; Hubbard v. N. Y., etc., R. R. Go., 14 Abb. 275.) If when the bonds were signed it was intended to sign just such instruments, they arfe good in the hands of a bona fide holder for value, although stolen or otherwise fraudulently put into circulation, there being nothing on their face to excite the suspicion of ordinary men, and a purchaser of them is not required to closely or critically examine them. (First Nat. Bk. v. Green, 43 N. Y. 298; Hyer v. Dorchester Bk., 11 Cush. 251; Duncan v. Scott, 1 Campb. 100; Dutchess Co., etc., Ins. Co. v. Hatchfield, 8 N. Y. Sup. Ct. 675 ; Worcester Bk. v. Dorchester, etc., 10 Cush. 488; Sybell v. Nat. Currency Bk., 54 N. Y. 288; Vale v. Parker, 6 Wend. 615, 620; Putnam v. Sullivan, 4 Mass. 45; Matthews v. Mass. Nat. Bk., Am. L. Reg., March, 1875, 153; Parsons on Bills, 114; Foster v. McKinnon, 314, 315, 317, supra; Young v. Grote, 4 Bing. 253; Byles on Bills [6th ed.], 292, note a and note 1, and Rex v. Revett, cited at p. 103; Murray v. Gardner, 2 Wall. 10; Ingham v. Primrose, 28 L. J. C. P. 295; 7 C. B. [N. S.] 82; Montague v. Perkins, 22 L. J. C. P. 188; S. C. Jurist, vol. 17, part 1; Van Duzer v. Howe, 21 N. Y. 531; Avoden v. Dixon, 6 Exch. 869; Magee v. Badger, 34 N. Y. 247; Scholey v. Ramsbottom, 2 Campb. 485; Bk. Com. v. Curry, 2 Dana, 122; Moody v. Threhild, 13 Ga. 55; Shipley v. Carroll, 45 Ill.; Welsh v. Sage, 47 N. Y. 143, 146; Goodman v. Lenard, 25 How. [U. S.] 343; Briggs v. Ewart, 51 Miss. 245; Aull v. Colket, 2 N. Y. Weekly Dig. 30; Helvese v. Hibernia Bk., id. 417; Citizens’ Bank v. Smith, id. 147.) It is immaterial that these bonds were not sealed by actual authority of the railroad company. (37 Me. 349; 12 Mich. 138; 3 Miss. 385 ; 19 Johns. 60 ; Barnes v. Ontario Bk., 19 N. Y. 63; Tenny v. E. W. Lumber Co., 43 N. H. 343; 30 Vt. 152, 159.) There being a seal affixed the presumption- in law is that it is the genuine seal. (Bowen v. Irish, 6 Bosw. 263.) A Bona fide purchaser for value has a right to rely on that presumption. (Ledwitch v. McKeon, 53 N. Y. 307; Angell & Ames on Corporations [5th ed.], § 707; McWilliams v. Mason, 31 N. Y. 294.) The nine bonds in question having been shown to have been in the possession of the company to be sealed and transmitted to the Trust Company to be certified, the presumption, upon the facts found, is that they were put in circulation by the president or secretary, or some other of the officers of the company, and they were, therefore, valid bonds of the company'in the hands of a bona fide purchaser for value. (Mechanics' Bk. v. N. Y. & N. H. R. R. Co., 34 N. Y, 30; Farmers, etc., Bk. v. Butchers and D. Bk., 15 id. 125; 14 id. 623; McWilliams v. Mason, 31 id. 294, cited supra; Van Duser v. Howe, 21 id. 531; Shotwell v. Mali, 38 Barb. 445; Life, etc., v. Mechanics' F. Ins. Co., 7 Wend. 31.) But if they got into circulation by the carelessness or negligence of the officers of the company the same result follows. (Helvese v. Hibernia Bk., 2 N. Y. Weekly Dig. 417; Aull v. Colket, id. 30.) The Missouri, Kansas and Texas Company is estopped from disputing the. validity of the mortgage to the extent of the nine bonds in question. (Hartly v. Harrison, 24 N. Y. foot of page 171 and page 172; Halsey v. Reed, 9 Paige, 446; Russell v. Pistor, 7 N. Y. 171; Ritter v. Phillips, 53 id. 586; Cramer v. Sepper, 2 N. Y. Weekly Dig. 589 ; Freeman v. Auld, 44 id. 53.) The trust created by the mortgage executed by the Missouri, Kansas' and Texas Bailway Co. to the Union Trust Company of February 1, 1871, even if regarded as a voluntary trust was irrevocable without' the consent of the cestuis que trust. (Drosier v. Brereton, 15 Beav. 251; Bunn v. Winthrop, 1 Johns. Ch. 337 ; Briggs v. Davis, 21 N. Y. 576, 577; Fellows v. Herman, 4 Lans. 230, 242, 244.) Nor could the trustee refuse to execute it. (Wood v. Wood, 5 Paige, 596; Griffin v. Ford, 1 Bosw. 123; Bleecker v. Brigham, 3 Paige, 246; Jones v. Butler, 30 Barb. 614; Tiff. & Bull on Trustees, 536 et in notis.) The cestuis que trust have the right in equity to enforce the tnist although the trust was created without their knowledge. (Weston v. Barker, 12 Johns. 276; Moses v. Murgatroyd, 1 Johns. Ch. 119; Duke, etc. v. Coddington, 3 id. 229; Hosford v. Merwin, 5 Barb. 51; Tiff. & Bull, on Trustees, 230, 23.1.) The bonds in question having been delivered to and received by the Missouri, Kansas and Texas Bail way Co., for the purpose of being exchanged for its own bonds and delivered by that company to its own trustee for the same purpose, neither of those companies can dispute the validity of the bonds or the plaintiff’s title thereto. (Welch v. Sage, 47 N. Y. 143; Marvin v. Elwood, 11 Paige, 365; Vosburg v. Huntington, 15 Abb. 254; Rogers v. Weir, 34 N. Y. 463.)</p> <p>The bonds in question were not the bonds of the Tebo and Neosho Company until its corporate seal was affixed to them. (Jackson v. Pratt, 10 Johns. 381, 387 ; Jackson v. Wood, 12 id. 73 ; Jackson v. Wendall, id. 355 ; Mann v. Pentz, 2 Sandf. Ch. 271; 2 Black. Com. 306 ; A. & A. on Corp., §§ 216, 217, 219; Murray v. Vanderbilt, 29 Barb. 149.) Even if the Tebo Company had sealed the bonds they would be void, because never issued or delivered by that company. (Lansing v. Gaines, 2 Johns. 302; Marvin v. McCullum, 20 id. 288; Edwards on Bills, 186; The People v. Loomis, 4 Den. 380, 384; Coddington v. Gilbert, 17 N. Y. 490 ; Whitney v. Snyder, 2 Lans. 477-8; Foster v. McKinnon, Law Rep., 4 C. P. 704; Caulkins v. Whisler, 29 Iowa, 495; Wait v. Pomeroy, 20 Mich. 425; Bunsen v. Huntington, 21 id. 415 ; Grover v. Clark, 21 La. Ann. 567; Lenheim v. Wilmerding, 51 Penn. St. 73 ; Hall v. Wilson, 16 Barb. 65; Baxendale v. Bennet, L. R., 3 Q. B. Div. 525.) The facts that defendant's retained the forged bonds, and have refused to return them to the plaintiffs, present no cause of action. (Lockwood v. Bull, 1 Cow. 322; Hill v. Covell, 1 N. Y. 522;. Munger v. Hess, 28 Barb. 75; Nellis v. Bradley, 1 Sandf. 560; Wheaton v. Baker, 14 Barb. 597; Ross v. Terry, 63 N. Y. 615; Brewster v. Burnett, 125 Mass. 68; Ross v. Terry, 63 N. Y. 615; Miller v. Race, 1 Smith’s Lead. Cas. 736.)</p>

This action was brought against defendant, as sheriff of the city and county of New York, for alleged neglect, to return within the time prescribed three executions in favor of plaintiff, against Henry L. Butler.

Supreme Court, in the second judicial department, made February 10, 1880, affirming an order of Special Term, admitting the relator to bail. (Reported below, 20 Hun, 241.) The relator was in the custody of defendant, the sheriff of the county of Dutchess, by virtue of a commitment from -the recorder of the city of Poughkeepsie, upon a charge of petit larceny not charged as a second offense.

The body of the complaint in this action is as follows: “ I. That the plaintiff is an infant under the age of twenty-one years. “ II. That on the 5th day o± October, A. D. 1874, at said city of Hew York, upon application duly made on his behalf, the said Chas. J. Hehrbas was, by an order of this court, duly appointed the guardian of the plaintiff for the purposes of this action. “III.

(Reported below, 17 Hun, 477.) The testimony in this cause was to the following effect; The plaintiff’s son had been in the employ of the defendant as clerk, and it was claimed that he had feloniously taken and carried away money from his employer.

. This action was brought to recover damages for alleged breach of contract. The facts established were substantially as follows: The Croton aqueduct board in pursuance of an ordinance of the common council of the city of New York, directing the paving of a specified portion of Eleventh street, which ordinance the evidence tended to show and it was assumed on the trial was illegal, advertised for proposals for the work.

<p>Upon an appeal from a judgment against defendant W., in an action for the recovery of possession of real property, he gave an undertaking to stay proceedings, in the form prescribed by the Code of Procedure (§ 338), containing among other things this provision that “ during the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon.” The judgment appealed from was affirmed by the General Term. W. appealed to this court, giving the requisite undertaking with new sureties. While this appeal was pending W., who remained in possession, committed waste. In an action on the undertaking given on appeal to the General Term held, that the surety was liable for the waste so committed; that his liability was not limited to waste committed pending the appeal to the Supreme Court.</p> <p>It seems that if after judgment of affirmance the defendant had continued in possession by permission of the plaintiff under an agreement constituting the relation of landlord and tenant, the obligation of the surety would not extend to subsequent acts of the tenant.</p> <p>It seems also that after such judgment the surety would have been entitled to call upon the plaintiff to execute the judgment and relieve him from liability; and unreasonable delay in proceeding after such notice would discharge the sureties from liability as to subsequent acts.</p> <p>It seems also that the sureties in the first undertaking would be entitled to resort for their indemnity to the undertaking on the second appeal.</p>

The nature of the action and the facts appear sufficiently in the opinion. Where one executes an instrument, or does an act in the name of another person, without authority or in a fictitious name, he is himself bound thereby, and can never be heard to test the efficacy of his own act to accomplish that which it purports to accomplish.

<p>One of several executors has no authority to borrow money without the assent of the others, and such assent is not to be assumed from the fact that the loan was for the benefit of the estate.</p> <p>In an action to recover for moneys alleged to have been loaned to the defendants, it appeared that defendants were executors of an estate, certain lots belonging to which were advertised for sale. Plaintiff’s transactions were with defendant F., alone, and it did not appear that the other defendants gave any directions in regard to the loans, or ever promised to pay them.. The referee found that the business relating to such sale was, with the assent of defendants, conducted by F., who disbursed large sums on account of the expenses of sale; that plaintiff advanced to him, for the purpose of defraying expenses, the sums mentioned in the complaint; and, as matter of law, said referee found that said advances were for the benefit and at the request of all the defendants, and that they were liable. Held, that the conclusions of law were not authorized by the findings of fact; that from the facts that F. conducted the business, and that plaintiff advanced moneys to defray expenses, it did not follow as a necessary or logical result that defendants reaped any benefit therefrom, or requested plaintiff to make the advances.</p>

Alberger to vacate an attachment issued in this action, and all subsequent proceedings thereunder; as to certain real estate levied upon by virtue thereof, to which real estate the moving party claimed title under a deed from defendant, Samuel F. Alberger, subsequent to the levy of the attachment. The motion was made upon the ground of the insufficiency of the affidavits upon which the writ was granted.

(Reported below, 18 Hun, 51.) This action was brought by plaintiffs, as sub-contractors, to foreclose a mechanic’s lien upon property in the city of Brooklyn, claimed to have been acquired under the lien law applicable to the counties of Kings and Queens (chap. 478, Laws of 1862). The facts pertinent to the questions discussed are stated in the opinion. The plaintiffs’ notice of lien w£is filed within the time required by law.

(Reported below, 18 Hun, 277.) The nature of the action appears by the abstract of the complaint contained in the opinion.

The nature of the action and the facts are set forth sufficiently in the opinion. Unless a party promptly dis: affirms a contract on the discovery of the fraud, he will be deemed to have waived the fraud, and to have elected to abide by the contract. (Wheaton v. Baker, 14 Barb. 594; Bruce v. Davenport, 3 Keyes, 374; Lamerson v. Marvin, 8 Barb. 9; Hunt, Adm'r, v. Singer, 1 Daly, 209; Benedict v. Nat.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made at the April term, 1879, affirming a judgment in favor of plaintiff, entered upon the report of a referee, (Reported below, 17 Hun, 435.)</p> <p>This action was brought under the general railroad act by plaintiff, as assignee of a judgment against the New York and Oswego Midland Railroad Company, against, defendant, as a stockholder of said company, to recover an amount alleged to be unpaid upon his stock.</p> <p>To prove the indebtedness of the corporation, the plaintiff offered in evidence the record of the judgment. This was objected to, and received under objection.</p> <p>Defendant set up in his answer, as a counter-claim, an alleged indebtedness of the company to him. After judgment had been entered in the case on the report of the referee, defendant obtained an order opening the judgment, and sending the case back to the referee to enable the defendant “ to put m his exhibits and records.” Upon the rehearing before the referee, defendant offered oral evidence to sustain his counterclaim ; this was objected to on the ground that the order did not authorize such testimony. The objection was sustained, and defendant’s counsel duly excepted.</p> <p>A judgment is not a debt. It is simply evidence of a debt, and only that as between parties and privies. (Burrill’s L. D., “Judgment;” Webster’s Dictionary, “Judgment;” Monroe v. Upton, 50 N. Y. 593.) The judgment of plaintiff’s assignors against the company was neither conclusive nor prima facie evidence of a debt against said company, as between this plaintiff and a stockholder. (Miller v. White, 50 N. Y. 137; Moss v. McCullough, 5 Hill, 131; Strong v. Wheaton, 38 Barb. 616; McMahon v. Macy, 51 N. Y. 155; Conant v. Van Schaick, 24 Barb. 87; 1 Phil, on Ev. 333; 1 Greenl. on Ev., § 522; Burrill’s L. D., “Privies;” 1 Greenl. on Ev., § 189; Webster’s Dictionary, “ Privy.”) The provision for the return of execution against the company does not apply to suits brought under section 10 of chapter 282 of Laws of 1854. (McMahon v. Macy, 51 N. Y. 155, 160; Ericsson v. Brown, 38 Barb. 390; Moss v. McCullough, 7 id. 279; Whithead v. Allen, 28 id. 661.) The debt due from the defendant to the company, if any, was a simple contract debt, and no more subject to the lien of the judgment against the company than would have been any other debt due the company from a party not a stockholder. (Sanger v. Upton, 91 U. S. 56; Webster v. Upton, id. 65; Ogilvie v. The Knox Ins. Co., 22 How. [U. S.] 380.) The recovery of the judgment, the issuing of the execution and the return thereof was a useless proceeding in no way connected with the plaintiff’s right to bring this suit. (McMahon v. Macy, 51 N. Y. 155.)</p> <p>Defendant’s subscription for stock and his participation as a stockholder in the election of directors constitute him a stockholder. (Spear v. Crawford, 14 Wend. 20; Buffalo R. R. Co. v. Dudley, 14 N. Y. 337; Lathrop v. Kneeland, 46 Barb. 432; Perkins v. Hatch, 4 Hun, 137.) The judgment is itself a debt. (Sayer v. Rustin, 3 Wend. 496; Jacob’s Law Dic., “Debt;” Bouvier’s Law Dic., “Debt;” Tomlin’s Law Dic., “Debt;” Chitty’s Pr. 108, 109; Anderson v. Murray, 9 Abb. Pr. 8; Taylor v. Root, 3 Keyes, 333, 334; McMahon v. Macy, 51 N. Y. 155, 160.) Plaintiff’s judgment is competent and conclusive evidence to prove the plaintiff to be a creditor of the railroad company, and establishes a debt and liability within the meaning of the statute. (Hastings v. Drew, 76 N. Y. 9; Sagony v. Dubois, 3 Sandf. Ch. 466; Sanger v. Upton, 91 U. S. 56; Ogilvie v. Knox Ins. Co., 22 How. [U. S.] 308; Stephens v. Fox, 17 Hun, 435; Mills v. Stewart, 41 N. Y. 384, 390; Rankin v. Elliott, 16 id. 377-380; Mann v. R. R. Co., 3 id. 415; Morgan v. R. R. Co., 10 Paige, 290; Bartlett v. Drew, 57 N. Y. 587; Webster v. Upton, 91 U. S. 65; Upton v. Tribilcock, id. 45; Nathan v. Whitlock, 9 Paige, 152; Burr v. Wilcox, 22 N. Y. 551, 556; Henry v. R. R. Co. et al., 17 Ohio, 187; Hastings v. Drew, 76 N. Y. 9; Gibson v. Haggerty, 37 id. 555; Loraher v. Mayor, etc., 7 Abb. 248; Ballston Bank v. Marine Bank, 18 Wis. 490; Baker v. Kenworthy, 41 N. Y. 215.) A debt contracted by the agents or trustees of the company renders the stockholders personally liable, and a judgment against the corporation therefor is binding and conclusive on the stockholders individually, to the extent of their respective shares, and whatever is a debt against the company is now, by force of the statute, a debt against them; and if the company itself was concluded the stockholders are equally concluded. (Angell & Ames on Corporations, § 615; Slee v. Bloom, 20 Johns. 668, 682, 684; Miller v. White, 50 N. Y. 137, 142; Moss v. Oakley, 2 Hill, 265; Moss v. McCullough, 7 Barb. 279 ; Moss v. Averell, 10 N. Y. 452.) In actions under the various statutes making officers and trustees of certain corporations liable for the corporate debts, because of their own or others’ fault, fraud or negligence, the judgment against the company is no evidence of the debt, and has no application to this case. (Hastings v. Drew, 76 N. Y. 9; Stephens v. Fox, 17 Hun, 435.)</p>

The amended complaint in this action contained three counts, the first two set forth a check, dated May 20,1861, drawn by the Bank of Georgetown, South Carolina, upon defendant, payable to the order of plaintiff, for $10,000, alleged to have been delivered to plaintiff by the drawer for a good and valuable consideration, and to have been drawn against a deposit with defendant, largely exceeding that amount to the credit of the drawer.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 22,1879, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 18 Hun, 176.)</p> <p>This action was brought to foreclose a lien claimed by plaintiff upon nine hundred shares of the stock of the Crown Point Iron Company pledged to it under and by virtue of the following assignment:</p> <p>“Whitehall, December 1, 1876.</p> <p>“ I hereby assign to I. M. Guy, Esq., Cashier of the Merchants’ National Bank of Whitehall, the annexed certificate No. 103, nine hundred shares Crown Point Iron Company Stock, as security for the payment of any demands the Merchants’ National Bank may from time to time have or hold against Edwin W. Hall.</p> <p>“SARAH ELIZABETH HALL.”</p> <p>At the time of the assignment plaintiff held a large amount of paper made or indorsed by said Edwin W. Hall, who was the husband of the assignor. New paper, with his name thereon, was subsequently discounted from time to time; the old paper was, in some instances, replaced by renewal notes. The court found, that when a renewal note was thus accepted, plaintiff intended to extend the time of payment of the debt until the new note became due, and that the renewals were without the knowledge or consent of Mrs. Hall. The court found, as a conclusion of law, that the pledge was a security for all of the indebtedness of Hall to plaintiff existing at the time of trial.</p> <p>Further facts appear in the opinion.</p> <p>The judge at the trial erred in holding that this collateral security was applicable to demands that were in existence at the time such security was assigned for the benefit of the bank. (Dobbin v. Bradley, 17 Wend. 422; Glyn v. Hertel, 4 Com. L. R. 112; Wright v. Johnson, 8 Wend. 512; Morrill v. Cowan, 20 Moak’s Eng. Rep., ; Hyatt v. Grover & Baker S. M. Co., 41 Mich. 225; Crowder v. Dick, 24 Miss. 39.) The court erred in holding that the extensions of time given E. W. Hall by the several renewal notes, without the consent of the defendant, did not discharge her liability upon the debts so extended. (Gahn v. Niemcewicz, 11 Wend. 312; Chester v. Kingston Bk., 16 N. Y. 336; Smith v. Townsend, 25 id, 479; Billington v. Wagoner, 33 id. 31; Samuel v. Howarth, 3 Merivale, 272; Davies v. Stainbank, 6 De Gex, McN. & G. 679; Howell v. Jones, 4 Tyrwhitt, 548; 1 Crompton, Messon & Roscoe, 97; Smith v. Townsend, 25 N. Y. 479; Hill v. Beebe, 13 id. 556, 563; Darlin v. Christie, 39 Barb. 610; Fellows v. Prentiss, 3 Denio, 512; Pratt v. Coman, 37 N. Y. 440; Lowman v. Yates, id. 601; Myers v. Wells, 5 Hill, 463; Place v. McIlvain, 38 N. Y. 96; Tobey v. Barber, 5 Johns. 68; Putnam v. Lewis, 8 id. 389 ; Van Epps v. Dillaye, 6 Barb. 244; Hubbard v. Gurney, 64 N. Y. 457, 466; Albany City Ins. Co. v. Devendorf, 43 Barb. 478; Pomeroy v. Tanner, 70 N. Y. 551; Calvo v. Davies, 8 Hun, 222; Grant v. Strong, 46 N. Y. 93.) The giving of a note for a debt, or a new note in place of an old one, is not payment of the old debt or security unless there is an express agreement to that effect, and it is doubtful if even an express agreement is sufficient. (Cole v. Sackett, 1 Hill, 516; Hill v. Beebe, 13 N. Y. 556; Bates v. Rosekrans, 37 id. 409; Highland Bk. v. Dubois, 5 Denio, 558; Burdick v. Green, 15 Johns. 247; Van Epps v. Dillaye, 6 Barb. 244; First Nat. Bk. of Chittenango v. Morgan, 6 How. 346; Parrott v. Colby, 71 N. Y. 597; affirmed, 6 Hun, 55; Dagger Iron Co. v. Walker, 76 N. Y. 521; Hill v. Beebe, 13 id. 556; Babcock v. Morse, 19 Barb. 140; Brinckerhoff v. Lansing, 4 Johns. Ch. 65; Bank of Utica v. Finch, 3 Barb. Ch. 193; Durham v. Dey, 15 Johns. 554 ; Parrott v. Colby, 71 N. Y. 597; Vail v. Foster, 4 id. 312; Noel v. Murray, 13 id. 167; Tobey v. Barber, 5 Johns. 68.)</p> <p>The words of a guaranty are to be taken as strongly against the guarantor as the sense will admit. (Fell on Guaranty, 141 [130] ; 62 Barb. 351; 7 Pet. 122; 12 East, 227; 3 Wheat. 148.) A pledge of personal property is an executed contract, and requires no consideration, any more than a gift. (Richardson v. Mead, 27 Barb. 180; Arthur v. Brooks, 14 id. 535; Towsley v. McDonald, 32 id. 604; Stone v. Frost, 61 N. Y. 613; Wilson v. Little, 2 Comst. 443; Hasbrouck v. Vanderwort, 4 Sandf. 74; Lewis v. Graham, 4 Abb. 106; McLean v. Walker, 10 Johns. 471; Wheeler v. Newbould, 16 N. Y. 392.) The word “ demands,” as used in the assignment, refers to each and eveiy separate obligation upon which E. W. Hall is liable, and not to the indebtedness in mass of Hall to the bank. (Altham's Case, 8 Rep. 299; Coke’s Notes, 305; Bacon’s Abr., “Release,” 1; Co. Litt. 291.b; Merle v. Wells, 2 Campb. 413; White's Bank v. Myles, 73 N. Y. 335; 3 Kern. 239.)</p>

, of Anñeke Jantz Bogardus, deceased. (Reported below, •18 Hun, 80.) The facts are set forth sufficiently in the opinion. A surrogate cannot determine the question of limitation and lapse of time; nor whether it has barred the remedy to recover alleged unadministered assets; or whether the proposed administrator with the will annexed would have any legal or equitable cause of action for the benefit of the estate. (Redfield’s Surr.

This action was brought to recover damages alleged to have been caused by defendant’s negligence to certain goods of the .plaintiffs which were shipped on board defendant’s steamship, the City of Baltimore, at Liverpool for New York. On December 25, 1865, the vessel left its dock, at Liverpool, in charge of a pilot, according to the usual custom, the water not being sufficient to allow the loading to be finished at the dock, to finish loading and coaling in the river Mersey.

(Reported below, 12 J. & S. 559.) This action was brought by plaintiff to recover a balance of salary alleged to be due him and unpaid for his services as an attendant upon the Supreme Court in the coúnty of New York. The facts are set forth with sufficient particularity in the opinion. ' To constitute an officer, there must be something more than a mere employment. There should be a fixed term continuing duties and powers as well as duties.

This action was brought by plaintiff, as broker, to recover commissions alleged to have been earned in effecting certain sales of steel rails, manufactured by the defendant, to the Grand Trunk Railroad Company. The facts appear sufficiently in the opinion. Plaintiff’s efforts as broker having been lawfully terminated, the court erred in not directing a verdict for defendant. (Wylie v. Marine Nat.

This action was brought by plaintiff to reach a trust fund deposited with the Union Trust Company of New York. On the 29th of January, 1877, plaintiff entered into a building contract with the defendants, Thomas and John McCormick, by which it was agreed that plaintiff should sell and convey to John McCormick seven certain lots of land for $2,425 each, and on each of which said John McCormick was to give back in payment for the same a bond and mortgage for that amount.

(Reported below, 17 Hun, 356.) This action was brought by the plaintiff, who is the owner of a grist-mill, which is operated by the waters of Tonawanda creek, in the town of Batavia, Genesee county, to restrain the defendant from diverting the water of said stream, above the plaintiff’s mill, to certain tanks and reservoirs constructed by the defendant for the purpose of supplying its locomotive engines with water, and also to recover damage for such diversion.

Errob to the General Term of the Supreme Court, in the fourth judicial department, to review judgment entered upon an order made October Y, 18Y9, affirming a judgment of the Court of Sessions, in and for the county of Erie, entered upon a verdict convicting the plaintiff of the crime of grand larceny.

The indictment contained four counts, each charging the plaintiff in error with feloniously assaulting one Louis Werckle and robbing and taking from him “ one key of the value of one dollar.” The first count charged the taking to have been “ from the person of said Louis Werckle and against the will and by violence to the person.” The second count charged the taking to have been “ in the presence of the said Louis Werckle against the will * * * and by putting the said Louis…

<p>The published notice inviting bids for a local improvement in the city of New York contained a provision that the bidders should state in their proposals the price per cubic yard for rock excavations, and one-fourth the price bid would be allowed as the price for earth excavations; the notice contained the estimated quantities of work to be done. Held, that in the absence of allegations or proof that the provision was fraudulently inserted or that it in fact did any harm, this was not a violation of the provisions of the charter of 1870 (§ 104, chap. 137, Laws of 1870), requiring contracts for such work to be let to the lowest bidder.</p> <p>A bid a little lower than the one accepted, tested by the estimated quantities, was rejected because of failure to conform to this specification, the bid for earth excavation being slightly in excess of one-fourth of that paid for rock excavation. Held, that the commissioner of public works having authority to insert the specification could require a literal and exact compliance therewith, and could reject as informal all bids not so complying, and a letting to the lowest bidder who did so comply, was valid.</p> <p>It appeared that the bid accepted, tested by the actual quantities as found in the prosecution of the work and as paid for, was the lowest. Held, that the error, if any, in not awarding the contract to the apparent lowest bidder was not a substantial one within the meaning of¡the statute of 1874, relating to.the vacating of assessments (chaps. 312,313, Laws of 1874); and that one whose lands were assessed for the improvement was not aggrieved thereby; and, therefore, was not entitled to have the assessment vacated.</p>

Ebboe to the General Term of the Supreme Court in the first judicial department, to review an order made March 1, 1880, affirming a conviction of Henry W. Genet, .in the court of Oyer and Terminer in and for the county of Hew York, of the crime of obtaining a signature to a written instrument by means of false pretenses.

(Be-ported below, 22 Hun, 525.) The indictment is fatally defective in- not averring that the woman upon whom the abortion was attempted was “ pregnant.” (3 R. S. § 11, p. 932 [6th ed.] ; People v. Allen, 5 Den. 79 ; People v. Taylor, 3 id. 93; People v. Wilbur, 4 Parker Crim. Rep. 20; People v. Wood, 53 N. Y. 511; 1 Chitty Crim. Law, 281, 282, 283 [ed. 1841] ; Archb. Cr. Pldg., 50 [ed. 1846] ; 2 Colby Crim.

(Reported below, 21 Hun, 415.) The particular offense charged and the material facts appear in the opinion. As “the active manager and representative ” of the corporation which had the care and custody of the boy, the plaintiff in error did not come within the meaning of the act under which he was indicted.

The nature of the action and the facts are set forth sufficiently in the opinion. The purchase of coal being directly within the objects for which the company was incorporated, and as its certificate of incorporation did not prohibit such purchase, the company is liable for the coal delivered by plaintiffs.

This action was brought to recover possession of three hnndred barrels of whisky alleged to have been wrongfully taken and detained by the original defendant, Matthew T. Brennan, then sheriff of the city and county of Hew York. He having died during the progress of the action, the present defendant, his executrix, was substituted.

<p>On October 1,1868, defendant issued an endowment policy on the life of T. which contained a condition declaring it void in case the insured should “ travel upon the seas,” without the written consent of the company previously obtained. Upon the back of the policy was also a stipulation to the effect that if, after three or more annual premiums had been paid, the policy should cease “in consequence of the non-payment of premiums,” the company would, upon its surrender, issue a new policy for the full value acquired under the old one. The annual premiums were paid up to, and including, the one due October 1, 1875. In September, 1875, T., without obtaining the consent of the company, and without its previous knowledge or subsequent assent, went to Spain. Plaintiffs, in August, 1877, offered to surrender the policy and demanded a paid up policy for eight-tenths of the amount of its amount, which was refused. In an action to enforce specific performance of such stipulation, held, that the policy and all rights under it were forfeited by the violation of said condition; and that even if a court of equity would, in any case, relieve against such a forfeiture, it was not authorized to do so here as it was not incurred by accident, ignorance, mistake, or any overpowering necessity.</p> <p>Also, held, that the stipulation did not constitute a separate and independent contract, but was to be taken in connection with the provision in the body of the policy, all constituting but one contract.</p> <p>Also, held, that the premiums paid were forfeited, although it was not so expressly provided in the policy.</p> <p>In reference to certain other conditions, some of which were conditions subsequent, it was expressly stated in the policy that in case of their violation, the premiums should be forfeited. Held, that the absence of this express provision, in reference to the condition in question, did not justify an inference that such a forfeiture was not intended.</p> <p>So, also, held, that the fact that as to certain other conditions it was expressly stated that its violation would work a forfeiture, “ without notice ” did not raise a presumption that the forfeiture here would not follow without notice, it appearing that there was an apparent purpose for the insertion of the express stipulation.</p> <p>When the last premium was paid in October, 1875, defendant gave a receipt, using a printed blank in general use by the company, which stated, in substance, that the policy was thereby continued in force for one year, subject to a condition forfeiting it in case any obligation given for premiums should not be paid when due. Held, that this receipt did not have the effect to relieve from the forfeiture and continue the policy in force for the year, but only continued it so far as depended upon the payment of premiums.</p> <p>On the hack of the policy was printed a statement that permits would be granted by the company “on reasonable terms” for persons insured “ to make voyages to any foreign country.” Itwas claimed by plaintiff that a forfeiture of the policy was not caused by a failure to obtain such a permit before the forbidden travel, but that the trial court should have ascertained what a reasonable charge would have been for the permit and have allowed it to defendant. Held," untenable ; that the defendant could not only make a reasonable charge for a permit, but could impose other conditions ; and the terms were so far in its discretion that unless it unreasonably refused a permit the court could not interfere ; and as no permit was asked for, and the company was thus deprived of the opportunity to fix terms, there was nothing for a court of equity to act upon.</p>

The nature of the action and the facts appear sufficiently in the opinion. The interests of the beneficiaries were contingent until the death of Mercy Dole. (Moore v. Lyon, 25 Wend. 119, 124; Van Nosstrand v. Moore, 52 N. Y. 12; Colton v. Fox, 67 id. 352, 353; Costar v. Lorillard, 14 Wend. 298; Carmichael v. Carmichael, 1 Abb. Ct. App.

<p>The charter of the city of Troy (§ 10, chap. 129, Laws of 1872) provides that no civil action shall be brought against the city for injuries to person or property “ unless it appears that the claim for which the action was brought was presented to the comptroller with an abstract of the facts out of which the cause of action arose, * * * and that the comptroller did not, within sixty days, audit the same.” Plaintiff presented a petition, as required, setting forth the facts and claiming damages to the amount of $10,000 for injuries alleged to have been caused by the negligent omission of the city to keep one of its streets in repair. The claim not having been audited as prescribed, this action was brought. The complaint alleged, substantially, the same facts as the petition and claimed $5,000 damages. Held, that the .word “ claim,” and the phrase “ cause of action,” related to the same thing; that although the amount of compensation was different, the claim presented in the petition and the cause of action set forth in the complaint were identical; and that there was a sufficient compliance with the provisions of the charter.</p> <p>"At the close of the charge of the court on the trial, defendant’s counsel excepted to the court’s “ statement to the jury of the evidence or the supposed evidence connected with the accident,” on the ground that it was “stated too strongly.” Held, that the exception was not sufficient to bring up any question for review.</p> <p>The injury was caused by the wheel of the wagon in which plaintiff was riding running into a hole in the street. The court after it had charged, in substance, that plaintiff could not recover if her negligence had in any manner contributed to the injury, and that she was responsible for the conduct of the driver, her son, was asked by defendant’s counsel to charge that “if the hole was one which might have been seen by the plaintiff or her son and readily avoided by the ordinary exercise of their eyes, the failure to avoid it constituted negligence.” The court replied that this was substantially correct, save the expression “ might have been seen,” as to which he charged, in substance, that if, in the use of ordinary care, the hole ought to have been discovered, plaintiff could not recover. Held, no error.</p>

(Reported below, 18 Hun. 417.) This action was brought by plaintiff upon a bond of indemnity executed by the defendants to the plaintiff, as marshal, which bond is as follows : “ Know all men by these presents, that we, Albert G. Wood-ruff, Francis J. Morris and Charles Morgan, are held and firmly bound unto Marvin R. Clark in the sum of one thousand dollars, lawful money of the United States, to be paid to the said Clark, or to his certain attorney or attorneys, executors,…

<p>Notwithstanding the provision of the Code of Civil Procedure (§ 791) giving preferences among civil causes, a party claiming a preference in this court must comply with the directions of Rule 20 ; i. e., he must state such claim in his notice of argument, and the grounds of the preference, etc.</p>

These are cross appeals from a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 22, 1879, affirming a judgment in favor of plaintiff against defendant, the police department of the city of Mew York, also a judgment in favor of defendant, the mayor, etc., against the plaintiff.

<p>The power conferred upon the commissioners of Central park by the act of 1867 (§ 1, chap. 697, Laws of 1867) to change the grade of any of the streets within a district therein specified, in the city of New York, was not subject to, or limited by, the provision of the act of 1852 (§ 2, chap. 52, Laws of 1852), prohibiting the common council of said city from changing the grade of streets without the written consent of the owners of two-thirds, in lineal feet, of the adjoining lands.</p> <p>Accordingly, held, that an assessment for a change in the grade of a street, made by said commissioners under said act of 1867, was not invalidated because of failure to obtain such consent.</p>

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made May 14, 1880, affirming an order of Special Term, denying an application to vacate an assessment upon certain lots of the petitioner for regulating and grading Ninth avenue in the city of New York, from Eighty-second to Ninety-third street.</p> <p>The facts appear sufficiently in the opinion.</p> <p>The common council could not delegate to the commissioner of public works the discretion with which they were invested of determining in what manner the work should be done; (In the Matter of the Emigrant Industrial Savings Bank, 75 N. Y. 388.) The inclusion of the block between Eighty-third and Eighty-fourth street in the contract to regulate Ninth avenue clearly rendered the assessment void. (In the Matter of Mahan, Ct. of App.; In the Matter of the Emigramt Industrial Savings Bank, 75 N. Y. 388; Brady v. The Mayor, 22 id.) The work for which the assessment was laid could lawfully be done only by a contract founded on sealed bids or proposals made in compliance with public notice, duly advertised, as provided by section 91 of the charter of 1873 (chap. 335, Laws of 1873). (In the Matter of the Emigramt Industrial Savings Bank, 75 N. Y. 388, 390, 396; In the Matter of Mahan, decided by Ct. of App. 1880; In the Matter of Manhattan Savings Institution, Ct. of App., Sept. 21, 1880.) The words “in such manner as by him shall be deemed necessary and proper ” referred only to the character of the work, its constituent parts, material, physical or mechanical characteristics, and not to the manner of employing persons to do the work, nor to the manner of procuring the supplies or materials necessary for it. (In the Matter of Robbins, Ct. of App., Sept. 21, 1880; Rogers v. Bradshaw, 20 Johns. 735, 744; Rexford v. Knight, 15 Barb. 627, 642, 643.) The necessity of inviting bids for this work was not obviated by including it in a contract with work which might be done without inviting bids. (In the Matter of Eager, 46 N. Y. 100.) All contracts, except as to works in progress when- the charter of 1873 was passed, must be let at public letting, as provided in section 91 of that charter. (In the Matter of the Emigramt Industrial Savings Bank, 75 N. Y. 390.) The action of the commissioner of public works in entering into a contract for this work at prices grossly in excess of the fair market value and of what he was paying for the same character of work where proposals had been received, founded upon advertisements, as required by law, was a fraud upon the property owners. (In the Matter of Mead, 74 N. Y. 216; In the Matter of Raymond, General Term; Harrison v. Glover, 72 N. Y. 451, 454; Clicot's Champagne, 8 Wall. 143.; Lush v. Druse, 4 Wend. 313; In the Matter of Mahan, Ct. of App., not reported; In the Matter of Robbins, 82 N. Y. 131; In the Matter of Manhattan Savings Institution, id. 142.)</p> <p>The act chapter 226 of the Laws of 1871 made it imperative on the commissioner of public works to proceed forthwith with the regulating and grading of Ninth avenue, and gave full power to do this work by days’ work, by contract or in any other way he pleased. (In re Rotschild, decided at Special Term, November 25, 1879, and affirmed at the General Term in January, 1880; Greene v. The Mayor, 60 N. Y. 303; Parr v. Village of Greenbush, 72 id. 463; Kingsley v. Brooklyn, 78 id. 200.) The power of the commissioner of public works, under chapter 226 of 1871, to do the work without the restrictions of the contract system, was expressly saved to him by the charter of 1873. (Greene v. The Mayor, 60 N. Y. 303; Kingsley v. Brooklyn, 78 id. 200; In re Rotschild, supra; Potter’s Dwarris, 154; People v. Mayor, 32 Barb. 35 ; Ellis v. Mayor, 1 Daly, 103; Haughwout v. Mayor, 2 Keyes, 422.) The commissioner of public works, in doing this work, acted under the provisions of chapter 226 of Laws of 1871, and possessing lawfully the power to do it, the presumption is that he acted lawfully. (In re Hebrew Ben. Orphan Asylum, 70 N. Y. 476; In re Bassford, 50 id. 512 ; In re Williamson, 3 Hun, 65-68; In re N. Y. P. E. Pub. School, 47 N. Y. 556; State v. Jersey City, 3 Dutch. 493; Davis v. Bruce, 82 Ill. 542.) The board of assessors had power to lay the assessment for the expense incurred under the contract with Tracey. (Newbury Turnpike Co. v. Miller, 5 Johns. Ch. 113; Potter’s Dwarris on Statutes, p. 220, note 27; In re Williamson, 3 Hun, 65-68; Bigelow v. The City of Boston, 120 Mass. 326; Jordan Ditching and Draining Association v. Wagoner, 33 Ind. 50 ; State v. Jersey City, 8 Dutch. 493 ; In re Ingraham, 64 N. Y. 310; In re Eager, 46 id. 100; In re McCormack, 10 Abb. [N. S.] 234.)</p>

The nature of the action and the facts appear sufficiently in the opinion. A tenant in. common, or joint tenant or partner, cannot maintain replevin against his co-tenant, or copartner, for taking the common property.

The nature of the action and the facts are set forth sufficiently in the opinion. It was error to receive extrinsic evidence as to the sources from which the testator received his property in aid of construction, in view of the clear unambiguous provisions of the will. (1 Redfield on Wills, 500, 501; Mann v. Mann, 1 Johns.

This action was brought to recover damages for injuries to plaintiff’s mare, alleged to have been caused by defendant’s negligence. The facts appear sufficiently in the opinion. Defendant was liable for damages resulting from its negligence in not properly constructing the crossing and allowing it to get out of repair.

<p>In 1844 certain premises were conveyed to plaintiff, a married woman, for life, as and for her own separate estate, free from the control of her husband, her husband covenanting for a consideration expressed that she should hold the premises to her own separate and sole use, free from any claim or interference from him. In an action to recover possession of the premises, brought against the husband and his tenant, held, that under the law as it existed when the deed was executed, plaintiff could, in equity, enjoy the property separate from her husband; that a trustee was not required to be named in the instrument, as in case of such omission the law created the husband a trustee for the wife; that the effect of the acts in relation to married women (chap. 200, Laws of 1848; chap. 375, Laws of 1849; chap. 90, Laws of 1860 ; chap. 172, Laws of 1862) was to change her equitable right to hold a separate estate into a legal estate, to give her the right of control and management the same as if she were a feme sole; that there was no occasion for her to resort to the Supreme Court, under the act of 1849 (§ 2), for the resignation and surrender of the trustee and a conveyance to her; and that as, by the said acts, she was given the power to sue and be sued, she could maintain the action.</p> <p>Also, held, that as it appeared that the husband had not acquired possession by the consent of the plaintiff, he was not entitled to notice to quit.</p> <p>Also, held, that the fact that the defendant had put valuable improvements upon the land was no defense to the action.</p> <p>It seems that one who has put improvements upon the lands of another is at the best only allowed to thereby mitigate the damages by offsetting them to the extent of the rents and profits claimed. To do this he must be a bona fide occupant; he cannot be allowed them if he has acted with knowledge of the owner’s right.</p>

This action was brought by plaintiff, as a creditor, against defendant, as a stockholder of the Citizens’ Gas-light Company of Long Island City, a corporation organized under the act authorizing the formation of gas-light companies (chap. 37, Laws of 1848). The complaint contained three, counts.

<p>Error to the General Term of the Supreme Court, in the third judicial department, entered upon an order made December 4, 1880, which affirmed a judgment entered upon a verdict convicting the plaintiff in error of the offense of keeping a disorderly and common bawdy and gambling house.</p> <p>The facts, so far as material, appear in the opinion.</p> <p>The court erred in refusing to charge defendant’s request: “ That the playing cards in defendant’s house does not, of itself, make it a disorderly house.” (2 Wharton’s Cr. Law [8th ed.], § 1465 ; id. [7th ed.], § 2407; People v. Sergeant, 8 Cow. 139 ; 2 Hawkins’ Pleas of the Crown [Leach’s ed.], 145, chap. 75, § 6; 1 Bishop’s Cr. Law [6th ed.], § 1135; to same effect, §§ 504, 1106 ; 2 Arch. Cr. Pl. & Pr. [8th ed.] p. 1767; Laws of 1851, chap. 504, p. 943 ; Hitchens v. The People, 39 N. Y. 454.) The court erred in charging the jury that “ it is not necessary, to constitute the offense, that the public should be disturbed by noise,” and in refusing to charge, that in order to convict they must find that his house was so kept as to annoy and disturb the persons near or having occasion to pass it. (People v. Sergeant, 8 Cow. 140; Mains v. State, 42 Ind. 327, 328; 1 Bishop’s Crim. Law, §§1046, 1051; Hunter v. Commonwealth, 2 Serg. & Rawle, 298, 299, 300; People v. Mauch, 24 How. Pr. 278; Boyd’s Case, 3 City Hall Rec. 134; Jacobowsky v. People, 6 Hun, 524, 525; 64 N. Y. 659; Barnesciotta v. People, 10 Hun, 137; People v. Carey, 4 Park. 238; People v. Baldwin, 1 Wheeler’s Crim. Cases, 279-286; People v. Rowland, id. 286, 287, 288 ; People v. Clarke, id. 288-292; 3 Inst. 205; Hawkins, chap. 75, § 7.) The court erred in charging that “ if prostitutes came to this saloon for the purpose of prostitution and there consummated their intent to the knowledge and with the consent of the defendant, you will find him guilty.” (Harwood v. The People, 26 N. Y. 191.)</p> <p>An indictment for keeping a disorderly house is not vitiated by charging, in the same count, that it is kept as a bawdy house, a tippling house and a dancing house. Evidence of any one of these circumstances will sustain the count. (2 Colby’s Crim. Law, 143; People v. Carey, 4 Park. Cr. 238.) The conducting of a house in such a way as to tend to the corruption of public morals, makes it a disorderly house. (People v. Baldwin, 1 Wheeler’s Crim. Cas. 285; People v. Rowland, id. 286; People v. Clark, id. 290, 291, 292; People v. Carey, 4 Park. Cr. 238; Jacobowsky v. People, 6 Hun, 524; 64 N. Y. 659; Barnesciotta v. People, 10 Hun, 137; 2 Archbold’s Crim. Pr. [8th ed.] 1766.) The evidence as to a vulgar image being exhibited at the prisoner’s saloon was properly received. (Wharton’s Crim. Ev., § 261 [8th ed.] ; People v. Mauch, 24 How. Pr. 276.) The prosecution had as much right to show what was said as what was done. (Wharton’s Crim. Ev., § 262 [8th ed.] ; People v. Weed, 56 N. Y. 628; People v. Pierson, 18 Hun, 252; People v. Stout, 4 Parle. Cr. 71.) It is competent to show that the prisoner attempted to bribe, or intimidate witnesses. (Wharton’s Crim. Ev., §§ 742, 749, 750 [8th ed.] ; Adams v. People, 9 Hun, 89, 94, 95.) What was at common law a nuisance is not made otherwise by a statute prohibiting it, and giving a new remedy. (2 Colby’s Crim. L. 73 ; Candee v. Hayward, 37 N. Y. 656; Wetmore v. Tracy, 14 Wend. 250.)</p>

Rugg. (Reported below, 21 Hun, 383.) The probate was contested on the ground that the will was not duly and properly executed, as required by the statute. The facts appear sufficiently in the opinion. The question to the subscribing witness whether, in his opinion, he was not mistaken was erroneously received. (54 How. 274; Benway v. Johnson, 5 Alb.

{Reported' below, 19 Ilun, 341.) The nature of the action and the material facts are set forth in the opinion. bfeither the society of a wife, nor the comfort which a husband may lose, by a negligent injury to her, survives to his administrator. (Cregin v. Crosstown R. R. Co., 56 How. 465; 75 N. Y. 192-194; 25 Hun, 369; George v. Van Horn, 9 Barb. 523; Howard v. Peck, 50 id. 202; Delamater v. Russell, 4 How.

<p>This was a motion to dismiss appeal because of failure to file proper undertakings.</p>