Volume 85 — New York Reports

, Tenth avenue, in the city of New York, from One Hundred and Fifty-fifth to One Hundred and Ninety-fourth streets. The work, for the expense of which the assessment in question was laid, was commenced in 1871, by and under a resolution of the department of public parks. One of the objections taken by the petitioner to the assessment was that there was no ordinance or resolution of the common council authorizing the work. Further facts appear in the opinion.

<p>These were cross-appeals from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made the first Monday of January, 1878, modifying and affirming as modified a judgment in favor of defendant entered upon a verdict, and denying a motion for a new trial.</p> <p>The nature of the modification and of the action, and the material facts are stated in the opinion.</p> <p>The acceptance of a note or bill by a creditor in satisfaction of a debt due him is a negotiation by the debtor for value.. (Purchase v. Mattison, 3 Bosw. 310; White v. Springfield Bk., 3 Sandf. 222; N. Y. Marbled Iron Works v. Smith, 4 Duer, 362; Ferdon v. Jones, 2 E. D. Smith, 106; Youngs v. Lee, 12 N. Y. 551; Brown v. Leavett, 31 id. 113; Bk. of Salina v. Babcock, 21 Wend.. 499; Bk. of St. Albans v. Gilliland, 23 id. 311; Bk. of Sandusky v. Scoville, 24 Wend. 115.) Whatever equities might have existed between Conklin and Sittig, and consequently between the defendant and plaintiffs, the title of the plaintiffs to the original notes was perfect and valid, as between,Sittig and them. (Merchants' Nat'l Bk. v. Comstock, 55 N. Y. 27; Frisbee v. Larned, 21 Wend. 450; Booth v. Smith, 3 id. 68; Waydell v. Luer, 3 Denio, 416; Gibson v. Booth, 46 N. Y. 637; Francia v. Del Banco, 2 Duer, 133; Soffe v. Gallagher, 3 E. D. Smith, 507.)- The fact that the original notes were indorsed by Mr. Sittig, and were delivered up and surrendered to defendant at the time they were renewed, while the note in suit was given by the defendant to and received by the plaintiffs without such indorsement thereon, operated as a payment of the original notes, created a new and independent contract, as between the plaintiffs and defendants, and operated to discharge the indorser on the original notes. (Waydell v. Luer, 3 Denio, 416; Myers v. Welles, 5 Hill, 463; Hart v. Hudson, 6 Duer, 294; Livingston v. Radcliff, 6 Barb. 201; Dorlon v. Christie, 39 id. 611.) In an action brought -by a firm, the defendant cannot set up as a counter-claim a cause of action against an individual member of that partnership, still less a cause of action against a party for whom that partner was acting as agent. (Peabody v. Bloomer, 6 Duer, 53; Mott v. Burnett, 2 E. D. Smith, 50; Mynderse v. Snook, 1 Lans. 488.)</p> <p>As the note in suit was an accommodation note, and was diverted and as plaintiffs were not bona fide holders, they were not entitled to recover. (Lawrence v. Clark, 36 N. Y. 128; Werner v. Barden, 49 id. 286, 291-295; Moore v. Ryder, 65 id. 438.) Defendant is entitled to his counter-claim. (Lawrence v. Am. Bk., 54 N. Y. 432; Mayer v. The Mayor, etc., of New York, 63 id. 455; Bank of Commerce v. The Union Bk., 3 Comst. 230; Waite v. Leggett, 8 Cow. 195; Westerlo v. Dewitt, 36 N. Y. 340; Barker v. Clark, 12 Abb. Pr. [N. S.] 106; 1 Pars. on Cont. 465.) Defendant’s payments and renewal notes do not constitute a ratification, for the reason that he did not know of the diversion. (1 Pars. on Cont. 506; Wait’s Law and Practice, 809; Craim v. Colwell, 8 Johns. 384; Sice v. Cunningham, 1 Cow. 397; 1 Pars, on Cont. 285; Id. [6th ed.], p. 50, note h.) It is immaterial whether plaintiffs as a firm were agents in this matter, or only E. W. Goodwin was the agent, as all the plaintiffs or the firm acted as principals with .defendant in transacting this business. (Story on Agency [4th. ed.], § 266; Canal Bk. v. Bk. of Albany, 1 Hill, 287; Baltzen v. Nicolay, 53 N. Y. 470; Dunlap’s Paley on Agency [4th Am. ed.], 388.) The evidence as to the notes and counter-claim was sufficient for the jury to act upon. (Adsit v. Wilson, 7 How. Pr. 66; Stillwell v. Mutual L. Ins. Co., 72 N. Y. 388; Harris v. Uebelhoer, 75 id. 169, 177.) This court has the right to examine the testimony to determine whether there is any evidence to sustain a verdict or finding of fact, and if there is not, it then becomes a question of law, and the court will reverse the judgment. (4 Wait’s Pr. 389; Gonzales v. N. Y. Harlem R. Co., 39 How. Pr. 407; Mason v. Lord, 40 N. Y. 476-484; Wallace v. Drew, 54 id. 678; Hart v. Maudle, 50 id. 381; Sowee v. Cornell, 75 id. 91, 98; Sheldon v. Sheldon, 51 id. 354; Wallace v. Drew, 54 id. 678; Thornton v. Autenreith, 55 id. 659.) A note transferred as security for or in payment of a precedent debt does not make the transferee a bona fide holder. (Weaver v. Barden, 49 N. Y. 293; Turner v. Treadway, 53 id. 650.) A party receiving a note given fraudulently in a compromise of a precedent debt, without surrendering any security, is not a bona fide holder. (Weaver v. Barden, 49 N. Y. 286, 291-295; Moore v. Ryder, 65 id. 438.) The pendency of an action for damages is no bar to the setting up of the same demand as counter-claim in a suit afterward against the same-plaintiff in the first action by defendant therein. (Wiltsie v. Northam, 3 Bosw. 162; Wright v. Ritterman, 4 Robt. 704; Fuller v. Read, 6 Duer, 697.)</p>

Appeal' from order of the General Term of the Supreme Court, in the second judicial department, made February 9, 1880, which reversed a judgment in favor of defendant, Clara B. Leavitt, entered upon a decision of the court on trial at Special Term. (Reported below, sub nom. Dunning v. Fisher, 20 Hun, 178.) This was an action to foreclose a mortgage, upon real estate situate in the city of Brooklyn.

<p>5 Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 6, 1880, reversing a judgment in favor of plaintiff, entered upon the report of a referee and granting a new trial, j (Reported below, 21 Hun, 53.) . 1</p> <p>This action was brought to foreclose a mortgage executed by the defendant Levi, upon lands situate in the city of Syracuse. Certain of the defendants, who were judgment creditors of the mortgagor, answered, claiming that their judgments were liens superior to the mortgage, as to a portion of the amount claimed by plaintiff to be secured thereby. The facts appear sufficiently in the opinion.</p> <p>The recording act makes a mortgage, when recorded, constructive notice to subsequent grantees and incumbrancers of its terms and conditions. (3 R. S. [5th ed.] 45, § 1.) A mortgage made bona fide for the purpose of securing future debts expected to be contracted in the course of dealing between parties, is a good and valid security. (1 Hilliard on Mortgages, 317; Jones on Mortgages, §§ 364, 365, 368, 372; Shirras v. Caig, 7 Cranch, 34; U. S. v. Hooe, 3 id. 73; Leeds v. Cameron, 3 Sumn. 488; Commercial Bk. v. Cunningham, 24 Pick. 270; Goddard v. Sawyer, 9 Allen [Mass.], 78; Truscott v. King, 6 N. Y. 147; James v. Morey, 3 Cow. 292; Brinkerhoff v. Lansing, 4 Johns. Ch. 73; Fassett v. Smith, 23 N. Y. 252, 258; Brackett v. Sears, 15 Mich. 244; Seaman v. Fleming, 7 Rich. [S. C.] Eq. 283; Garber v. Henry, 6 Watts [Penn.], 57; Crane v. Dunning, 7 Conn. 387; McDaniels v. Colvin, 16 Vt. 300; Ward v. Cooke, 17 N. J. Eq. 93; Bk. of Utica v. Finch, 3 Barb. Ch. 293; Robinson v. Williams, 22 N. Y. 380; Stuyvesant v. Hall, 2 Barb. Ch. 151, 158; Talmadge v. Wilgers, 4 Edw. Ch. 239, note; Howard Ins. Co. v. Halsey, 8 N. Y. 271; Wheelwright v. Depeyster, 4 Edw. Ch. 232; King v. McVicker, 3 Sandf. Ch. 192.) A judgment subsequent to a mortgage stands on no better footing than a junior mortgage. (Thomas v. Kelsey, 30 Barb. 268; Youngs v. Wilson, 27 N. Y. 351; Truscott v. King, 6 id. 161, 162; Lansing v. Woodworth, 1 Sandf. Ch. 43, 46; Goodhue v. Berrien, 2 id. 680.) A prior mortgage is affected only by actual notice of a subsequent mortgage, and not by constructive notice from the recording of the second mortgage. (Jones on Mortgages, § 372; McDaniels v. Colvin, 16 Vt. 300; Truscott v. King, 6 Barb. 346; S. C., 6 N. Y. 166; Robinson v. Williams, 22 id. 387; Nelson v. Boyce, 7 J. J. Marsh. [Ky.] 401; 11 Am. L. Reg. [N. S.] 273; Ladue v. Detroit, etc., Railway Co., 13 Mich. 380.) If a mortgage contains enough to show a contract between the parties, that it is to stand as a security to the mortgagee for such indebtedness as may arise from the future dealings between the parties, it is sufficient to put a purchaser or incumbrancer on inquiry, and if he fails to make it he is not entitled to protection as a bona fide purchaser. (Jones on Mortgages, § 373; Witzinski v. Everman, 51 Miss. 841, 845.) Such mortgage is good for advances made after a subsequent mortgage or sale, if made in good faith, without notice. (Gordon v. Graham, 2 Eq. Cas. Ab. 578; Burdett v. Clay, 8 B. Monr. 287; Nelson v. Russell, 13 Ind. 494, 535; King v. McVicker, 3 Barb. Ch. 208; Frye v. Bank, 11 Ill. 381.) It is not even necessary that the mortgage should express on its face that it is given to secure future advances. (Collins v. Carlisle, 13 Ill. 254; Darst v. Gale, 83 id. 136; Bank of Utica v. Finch, 3 Barb. Ch. 293; Murray v. Barney, 2 Sandf. Ch. 78; Wescott v. Gunn, 4 Duer, 107; Walker v. Snediker, Hoffman’s Ch. 145; Townsend v. Empire Stone Dressing Co., 6 Duer, 208; Foster v. Reynolds, 38 Mo. 553; Griffin v. N. J. Oil Co., 11 N. J. Eq. 49; James v. Brown, 11 Mich. 30.) Plaintiff had the right to apply a portion of the payments made by Levi upon his unsecured claims. (Thomas v. Kelsey, 30 Barb. 274.)</p> <p>As to all indorsements made by the plaintiff after the docketing of the judgments respectively, he was a subsequent incumbrancer and chargeable with notice. (Brinkerhoff v. Marvin, 5 Johns. Ch. 320, 327; James v. Johnson, 6 id. 417, 429; Lansing v. Woodworth, 1 Sandf. Ch. 43; Barry v. Merchants' Exch., etc., id. 280; Craig v. Tappan, 2 Sandf. Ch. 85; Goodhue v. Berrien, id. 630; Robinson v. Williams, 22 N. Y. 380; Hall v. Crouse, 13 Hun, 557; 4 Kent’s Com. 175, and note 3 [11th ed.]; Spador v. Lawlor, 17 Ohio, 371; Ter Hoven v. Kern, 2 Barr [Penn. St.], 96; Ladue v. Detroit & M. R. R. Co., 13 Mich. 380.; Parmenter v. Gillespie, 9 Penn. St. 86; McLure v. Roman, 52 id. 458; Parker v. Jacoby, 3 Trant. 300; Boswell v. Goodwin, 31 Conn. 74; Hartley v. Ketlin, 45 Penn. St. 49; Hubbard v. Savage, 8 Conn. 215, etc.; id. 37; 7 id. 387; Kramer v. Farmers' Bk. of Ohio, 15 Ohio, 253; Bank of Montgomery's Appeal, 36 Penn. St. 170; Collins v. Carlisle, 13 Ill. 254; 3 Am. L. Reg. 92, etc.; Thomas on Mortgages, 61, 62; Ketcham v. Wood, 10 Weekly Dig. 453; Craig v. Tappan, 2 Sandf. Ch. 85.) A mortgage does not pass any estate in the land. It is simply a security for a debt, and no more than a judgment. (11 Johns. 534; 16 id. 254; 19 id. 325; 5 Wend. 603; 2 Paige, 68; 3 Barb. 305; 27 id. 503; 3 Den. 232.)</p>

This action was brought for partition of a farm situate in Otsego county, of which Stephen Morse,‘late-of Butternuts, in that county, died seized. The facts are sufficiently stated in the opinion. Under this will the share of the executor in the land in question goes to him in fee-simple absolute, and the alleged power to sell as executor does not attach to that share.

<p>The measure of a master’s duty to his servant is reasonable care, having relation to the parties, the business in which they are engaged, and the exigencies which require vigilance and attention ; he is not a guarantor of the safety of his servant.</p> <p>The fact that one employe upon a railroad is hired and discharged by one superior agent and another by another does not affect the relation of the employes to each other as fellow-servants.</p> <p>A company or individual operating a railroad has the right, as regards employes, to vary from the regular time-table in the running of trains ; all that is required is due care and diligence in giving notice of the change and in running the train upon the changed time.</p> <p>It is not required that the master should see to it personally that notice of such a change comes to the knowledge of all those.to be governed thereby. If there is due care and diligence in choosing competent persons to receive and transmit the necessary orders, a negligence by them in the performance of it is a risk of the employment that the co-employe takes when he enters the service. The duty of the master is performed when he provides beforehand and makes known to his servants rules explicit and efficient, which, if observed and followed by all concerned, will bring personal notice to every one entitled to it.</p> <p>Where regulations for the running of trains out of time, proper and suitable, with a view to the safety of employes, are prescribed, obedience to these regulations by those having charge of a train is matter of executive detail; and for a disobedience of them, which causes injury to a co-employe, the master is not liable.</p> <p>It seems that the courts may take judicial notice of the way in which the great railways are managed in the every-day practical running of them, i. A, by overlooking officers at distant places, 'who by means of the telegraph are advised where trains are, and direct their movements.</p> <p>S., plaintiffs’ intestate, was a fireman upon a train running upon a railroad operated by defendant as receiver. He was killed by a collision between Ms train and another. It was the custom, and was prescribed by the general regulations for the running of trains on said road, that when trains were behind time they should be moved in accordance with special telegraphic orders from the train dispatcher, to be communicated by the telegraph operators receiving them to the conductor and engineer of the train, in the presence of each other. An order was so sent directing where the train which collided with the train upon which S. was should meet the latter. The operator communicated it to the conductor but not to the engineer ; the conductor, without the authority or assent of the engineer, signed the name of the latter in acknowledgment of receipt of the order, and the train dispatcher was advised that the order had been correctly delivered. The conductor forgot to deliver the order to .the engineer, who, in ignorance of it, instead of waiting' at the station designated until the other train came up, proceeded with his train and the collision occurred. In an action to recover damages there was no evidence but that the operator and conductor were competent and skillful when employed. It did appear that defendant’s rules p,nd regulations were well devised for safety, and had been in use for a number of years with- '■ out occasioning any accident. Held, that the negligence was that of fellow-servants of the intestate in the same common employment, for which defendant was not liable.</p> <p>Flike v. B. & A. R. R. Co. (53 N. Y. 549), Fuller v. Jewett (80 id. 46), Crispin v. Babbitt (81 id. 516), distinguished.</p>

<p>Upon the trial of an indictment for murder, a witness for the prosecution having testified that, the morning after the murder, he saw, near the house of the prisoner, where the murder was committed,' and in the path between it and the house- of the prisoner’s father, to which he went, spatters or spots upon a stone, and after the witness had stated that he could testify, as a matter of fact, what the spots were, he was asked so to state. This was objected to as irrelevant, and that the witness was not an expert, and was not competent to express an opinion. The objection was overruled ; the court, however, stated to the witness that his opinion was not requested, and he would only be allowed to answer as a. fact what the substance was. The witness answered that it was blood. Held, that the admission of the evidence was not error; that the fact that blood-stains were found in the path the prisoner probably took, was material and competeht;'and that the witness, although not an expert, was competent to testify to the fact.</p> <p>The. person killed was the wife of the prisoner. Evidence was received under objection, and exception as to the prisoner’s conduct on the morning after the homicide, i. e., that he shed no tears, and showed indifference. Held, no error.</p> <p>A letter written by one K., to his brother, containing statements which were claimed by the prisoner’s counsel to be admissions that he, K., committed the murder, was offered in evidence on behalf of the prisoner, and was excluded. Held, no error.</p> <p>So, also, held as to an anonymous letter written to the sheriff, in which the writer confessed to having committed the murder.</p> <p>A witness for the defense testified that on the night of the murder he stayed at a house about three-fourths of a mile from the house of the prisoner; that he was awakened by the barking of a dog about 4 A. M., that he got up and went to the window, where he saw the two K.’s and one T. The prisoner’s counsel then offered to prove that the witness heard T. say: “You were damned fools to do it;” to which One of the K.’s answered: “If we had not done it, we should all have been hung.” This was objected to and excluded. Both of the K.’s were in court during the trial. Held, no error; that, in the absence of other evidence connecting either of the three with the murder, no proper presumption of any such connection could be drawn from the testimony excluded.</p> <p>The court, in its chargo, having submitted certain facts to the j ury as circumstances proper to be considered against the prisoner, the prisoner’s counsel asked the court, but declined to charge, that they could not be so considered. After the charge, an adjournment was had for dinner, and immediately upon the convening of the court thereafter, it sent for the prisoner and the jury, and directed the latter to exclude from their consideration the evidence relating to said facts, and to give it no weight whatever. Held, that if there was error in the charge, or in the refusal to charge, it was cured by the subsequent instructions. .</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department entered upon an order made September 17, 1880, affirming a judgment in favor of defendant, entered upon a verdict.</p> <p>This.was an action of ejectment brought to recover possession of certain premises situate in the city of Brooklyn.</p> <p>John Foley died in 1872, seized of the premises, leaving a will, the provisions of which, so far as they affect the nremises in question, are as follows:</p> <p>“First. After all my lawful debts are paid and discharged, I give and bequeath to my dear wife, Catherine Healey, the house and lot in which I now reside, and which house and lot I now own and which house and lot is situated on the northerly side of Luqueer street, in the twelfth ward, in the city of Brooklyn, aforesaid. The said described property is to'be held by my said wife, after my death, to and for the chief purpose of keeping and protecting the same for her own and my daughter’s benefit; provided,however, that my said wife shall prudently use the rents and benefits, if any there may be, of said property for the maintenance and support of herself and said daughter; and also, that my said wife shall be and act as the sole guardian and protector of my said daughter as long as she remains unmarried; but if. she, my said wife, should get married; or otherwise commit acts contrary to the wishes of my executors herein named, then my executors shall have the power to have the control of said property taken from my said wife, and also the guardianship of my said daughter. This use and privilege of my said property to my said wife is in lieu of her dower right.</p> <p>“ Second. I also wish and will that if my said daughter Margaret should get married, or die without leaving any children, and that her husband should live after her death, he shall not inherit the said property or any part thereof; but if there are any children born of my daughter, and living after her death, the property shall be theirs, share and share alike, and managed accordingly by my executors.,</p> <p>“ Third. I wish and will, that should my said daughter Margaret die without leaving any issue, then the said property shall be left to my nephew, John'Foley.”</p> <p>The testator’s widow died in 1874. His daughter Margaret thereafter married the plaintiff. Foley died in 1876, and Margaret died in 1878, .leaving no issue surviving. Margaret, prior to her death, conveyed the premises to one Battersberry who conveyed to plaintiff. In an action of partition between the heirs of John Foley, defendant was appointed receiver. ,</p> <p>The fee not being devised to Margaret, vested in her by descent, subject to the limitations to her issue, and John Foley. (Rosevelt v. Fullerton, 7 Cow. 79; Schauber v. Jackson, 2 Wend. 33; Wolfe v. Van Nostrand, 2 N. Y. 431.) Even if the devise to Margaret was on contingency, yet, as heir, she would take the fee by descent. (Fearne’s Rem. 353; Plunkett v. Holmes, 1 Lev. 111; Buell v. Southwick, 70 N. Y. 580; Purfroy v. Rodgers, 2 Sandf. 380; Carter v. Barnardiston, 1 P. W. 505-516; 4 Kent, 257.) The remainders to Margaret’s issue, and to John Foley, are both contingent. (1 R. S. 723, § 25; 3 id. [2d ed.] 573; Doe v. Holme, 2 Bl. 777; Luddington v. Kime, 1 Ld. Raym. 203; Goodright v. Durham, Doug. 253; Goodtitle v. Billington, id. 753; Roddy v. Fitzgerald, 6 H. L. C. 832; 4 Kent, 205, note e; Woodruff v. Cooke, 47 Barb. 304; S. C., 61 N. Y. 638; Barnes v. Hathaway, 66 Barb. 452; Jackson v. Noble, 2 Keene, 590.) The remainder to Foley cannot answer a single test, required by the statute, of a vested iemainder. (1 R. S. 723, § 10; Moore v. Littel, 41 N. Y. 93; Savage v. Pike, 45 Barb. 464; Fearne’s, 216; 3 Austin [Lond. ed.], 79; Miller v. Emans, 19 N. Y. 384; Jackson v. Waldron, 13 Wend. 178; 3 R. S. [2d ed.] 573; Barnes v. Allen, 1 Bro. C. C. 181; Pinbury v. Elkin, 1 P. W, 563; Doe v. Moore, 14 East, 601; 1 R. S. 773, § 2.) The term “ Estate of Inheritance” embraced every species of fee at common law, and Margaret had such an estate. (1 R. S. 722, § 2; 4 Kent, 9; Jackson v. Noble, 2 Keene, 590; Roberts v. Dixwell, 1 Atk. 607; Baskerville v. Baskerville, 2 id. 297; 1 R. S. 724, § 28; reviser’s note to same section.) The testator intended the bequest to Foley should fail, if the daughter survived him. Getting v. McDermott, 2 M. & K. 69; Elliot v. Davenport, 1 P. W. 83; Toplis v. Baker, 2 Cox, 222; Maybank v. Brooks, 1 Bro. C. C. 84; Thurber v. Chambers, 66 N. Y. 42; 2 R. S., §§ 25, 66; Van Buren v. Dash, 30 N. Y. 393; Beauclerk v. Dormer, 2 Atk. 308; Roper’s Leg. 706; Lowfield v. Stoneham, 1 Strange, 1261; Hinckley v. Simmons, 4 Ves. 161; Clark v. Lubbeck, 1 Yo. & Col. [C.] 492; Webster v. Hale, 4 Mad. 144; Turner v. Moor, 6 Ves. 557; Cambridge v. Rous, 8 id. 12; Ommarey v. Baker, 18 id. 557; Wolfe v. Van Nostrand, 2 N. Y. 431; Galland v. Leonard, 1 Swanst. 161; LeJune v. LeJune, 2 Keene, 701; Hervey v. McLaughlin, 1 Price, 264; Hone v. Pillans, 2 M. & K. 15; Moore v. Lyons, 25 Wend. 119; Livingston v. Greene, 52 N. Y. 118; Kelly v. Kelly, 61 id. 47; Embury v. Sheldon, 68 id. 227.) Besides hastening the vesting, the courts require the precise events designated by the will, to occur, before the bequest can be divested, by limitations over. (Jackson v. Noble, 2 Keene, 590; Sturges v. Pierson, 4 Mad. 411.) As a general rule, contingent rights are transmissible, unless the existence of the contingentee at a given tim.e is of the essence of the contingency, on which the right is to arise. Here the existence of Foley at Margaret’s death was essential. (3 Austin [Lond. ed.], 80; 1 R. S. 724, § 25.) Even had the devise been to Foley and his heirs, they would not take by substitution, unless the property vested in him. (Thurber v. Chambers, 66 N. Y. 42.) When the devise is to persons as a class they can take only by substitution, if the property vests in the primary legatee. (Christopherson v. Naylor, 1 Mer. 330; 3 Ves. 611; Giles v. Giles, 8 Sim. 360; Van Buren v. Dash, 30 N. Y. 393.)</p> <p>At the time of his death, John Foley’s interest in the premises was a vested remainder. Such an interest is vested “ where there is a person in being who would ’have an immediate right to the possession of the land upon the ceasing of the intermediate or precedent estate.” (1 R. S. 723, § 13 [Edm. 672]; Moore v. Littel, 41 N. Y. 76; Foley v. Foley, 17 Hun, 238.) It may be conceded that previous to the Bevised Statutes, Foley’s interest in the premises at his death would be called an executory devise. (Jackson v. Staats, 11 Johns. 337; Fosdick v. Cornell, 1 id. 444.) Such an interest was devisable and descendible at common law. (Roe v. Jones, 1 H. Black. 30; 3 Term, 88; Roe v. Griffith, 1 Bl. 605; Selwin v. Selwin, 2 Burrow, 1131; Winslow v. Goodwin, 48 Mass. 374; 1 Redf. on Wills, 391; 2 Washb. on R. P. 582 [marg. 223].) The legal effect of leaving the remainder to John Foley generally, without providing for its defeat in case of his death before it vested in possession, would be that, if he died before the contingency, his heirs or devisees would take in his stead when his interest ripened into possession. (Moore v. Hawkins, 2 Eden’s Ch. 341; Pinbury v. Elkin, 1 P. Wms. 563; 2 Vent. 347; King v. Withers, Cas. temp. Talb. 117; Chauncy v. Graydon, 2 Atk. 616; Hodgson v. Rawson, 1 Ves. Sen. 46; Medlicott v. Bows, id. 201; Barnes v. Allen, 1 Bro. C. C. 181; Devisne v. Mello, id. 537; Perry v. Woods, 3 Ves. Jr. 204; 2 Redf. on Wills, 245; 4 Kent’s Com. 7; 1 R. S. 748, § 1, Edm. 699; Winslow v. Goodwin, 48 Mass. 374.)</p>

This action was brought by plaintiff ■ as supervisor of the town of White Plains, Westchester county, upon a bond given by Stephen S. Marshall, former supervisor of said town, as principal, and the others, defendants, as sureties. One of the defendants, Gilbert S. Lyon,, having died, his executors, James Carr and Wesley Lyon, were substituted as defendants, the action was ordered to be severed, and to proceed against them separately.

The nature of the action and the facts are set forth sufficiently in thé opinion. The defendant is by law constituted the custodian of the premises in question. (Laws of 1851, chap. 386, § 2; Laws of 1853, chap. 301, § 14; chap. 101 of 1854; chap. 574 of 1871, § 7; chap. 112 of 1873, p. 196, §§ 2, 4.) The defendant is responsible for its own contracts.

judicial department, entered upon an order made April 6, 1880, affirming a decree of the surrogate of the county of Wyoming on settlement of the accounts of defendant as executor of the will of Sarah E. Little, deceased. (Eeported below, 21 Hun, 59.) The material facts are set forth in the opinion. The administration in this State is the principal administration, and that in Michigan is . ancillary, or auxiliary thereto. (Suares v. Mayor, etc., of N. Y., 2 Sandf.

Special Term. This action was brought by the plaintiff as receiver of the property of the defendant, Joseph Henry, appointed in proceedings supplementary to execution against him, to set aside certain chattel mortgages and bills of sale of the property of the said Joseph Henry as fraudulent and void as against Edward Min turn, the judgment creditor who instituted said proceedings.

The claim was for moneys of the executor alleged to have been in the hands of the testator and to have been loaned by him without authority; it was contested by the legatees under the will. The surrogate referred the matter to a referee to take the proof and report the same with his conclusion thereon. The referee reported against the claim.

(Beported below, 17 Hun, 192.) This action was brought by plaintiffs as legatees under the will of their grandfather Belding Hoyt, among other things to have the legacies charged upon the real estate of which the testator died seized. The will was executed August 6, 1868. The clauses of it in question are as follows: “ First. I order and direct that all my just debts be paid. 11 Second.

(Mem. of decision below, 21 Hun, 227.) This was a reference under the statute of a disputed claim against the estate of Henry Yelverton, deceased. The material facts are stated in the opinion. The fact that the recital that the will had been admitted to probate was made upon an exemplified or authenticated copy of the will without the production of the original will, or application to prove the original will, renders the proceedings void.

<p>Defendant, in June, issued to plaintiff a policy of insurance upon the buildings upon his farm, 'i. e. a dwelling-house, used bythelatteras asummer residence; the outbuildings appurtenant thereto; a farm-house, barn, etc.; also upon the furniture and personal property upon the farm. The different items of property were separately stated, with the amount of insurance on each. The policy contained a condition declaring it void in case “the above-mentioned premises s * * become vacant or unoccupied, and so remain for more than thirty days, without notice and consent of this company in writing.” Plaintiff was living in the dwelling-house at the time the policy was issued; he left the place in November, leaving the dwelling furnished and in charge of his farmer, who occupied the farmhouse, and members of whose family visited and aired the dwelling once a week ; plaintiff and his wife also visited it once a fortnight. In April, 1875, the dwelling and some of the outhouses were destroyed by fire. In an action upon the policy, held, that the dwelling-house was not occupied within the meaning of the policy, which was therefore forfeited by a failure to notify and obtain the consent of the company.</p> <p>For a dwelling-house to be occupied, within the meaning of such a condition, it must be used by human beings as their customary place of abode.</p> <p>Also held, that the fact that defendant knew, when the policy was issued, that the dwelling was used as a summer residence only did not affect the condition, as the dwelling was then occupied and provision was made for the cessation of occupancy.</p> <p>Also held, that the fact that the farm-house and other buildings remained -occupied did not save the condition; that the words "above-mentioned premises” were to be used distributively, and to be applied to each item of property, as separately stated in the policy.</p> <p>It was claimed that evidence that the dwelling was unoccupied furnished no evidence as to the outbuildings consumed. Meld, untenable, as the latter were appurtenant to and the use of them concurrent with that of the dwelling.</p> <p>Herrman v. M. Ins. Co. (81 N. Y. 184), distinguished.</p>

<p>The rule that where different portions of mortgaged premises are successively mortgaged, they are to be sold on foreclosure of the mortgage covering the whole premises in the inverse order of incumbrance, is one of equity and yields to circumstances.</p> <p>In an action to foreclose a mortgage upon a city lot of one hundred feet front, it appeared that a subsequent mortgage was executed covering the whole premises, but that the holders released from its lien the northerly forty feet upon which a third mortgage was executed. The mortgagor died seized"of the whole premises, leaving a will by which she devised the sixty feet and the forty feet separately, in trust for different beneficiaries. The. amount due upon the three mortgages exceeded the value of the whole lot. If the forty feet were first sold, and if they sold for full value, after payment of plaintiff’s mortgage, only sufficient would be left to pay about one-third of the last mortgage, while the devisees of the sixty feet which were of value sufficient to pay the mortgage thereon, and leave a surplus of about $3,000, would hold the equity of redemption relieved of the lien of plaintiff’s mortgage. JIM, that the judgment should direct the sale of the whole lot, and the payment of the mortgages, according to their priority, out of the proceeds.</p>

) This action was brought to compel the specific performance of a contract for the sale by plaintiff and purchase by defendant of certain lands. Defendant refused to complete the purchase .on the ground of defect of title. Louisa W. Cuming died seized of the premises in question, they having been devised to her by her mother.

This action was brought against the superintendent of school buildings in the city of New York and the ward trustees, to recover damages for injuries sustained by plaintiff from falling into an opening leading to the cellar of a school building in said city, the grating to which had been negligently left open by workmen employed by defendants, the ward trustees, in repairing the building. Further facts appear in the opinion.

(Reported below, 8 Daly, 530.) The nature of the action and the facts are sufficiently stated in .the opinion. One of several creditors, who have agreed to the terms of the composition, cannot, by refusing to perform on his part, annul the composition or revive the original debt[ so far as he is concerned.

The nature of the reference and the material facts appear in the opinion. The referee erred in striking out declarations of the plaintifE tending to show that, by contract and arrangement with the testator, the legacy was to compensate for the same services for which she now claims payment: (Patterson v. Patterson, 13 Johns. 379; Quackenbush v. Ehle, 5 Barb. 469; Robinson v. Raynor, 28 N. Y. 494; Reynolds v. Robinson, 64 id. 589; 22 Alb.

This action was brought originally against Samuel Ham, the testator of the present defendant, to restrain him from removing the buildings from certain premises in the village of Catskill.

<p>Appeal from order of the General Term of the Supreme Court, in the third judicial department, made' November 26, 1879, reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>This action was brought to recover the ■ amount of a draft alleged to have been altered and to have been purchased by plaintiff upon the strength of the indorsement thereof by Justice Pickering, defendant’s testator'..</p> <p>The material facts are stated in the opinion.</p> <p>Hr. Pickering, by indorsing the draft, guaranteed its genuineness in all particulars, including the amount of money for which it called. (Story on Promissory Notes, §§ 335, 379, 380, 387; 1 Daniel’s Neg. Inst., §§ 669, 1113; Turnbull v. Bowyer, 40 N. Y. 456, 460; White v. Continental Nat. Bk., 64 id. 320.) He was liable to the plaintiff for the amount of the draft, by reason of such guaranty or contract, without any demand of payment and notice of dishonor. (Goddard v. The Mechanics' Bk., 4 N. Y. 147, 151; Turnbull v. Bowyer, 40 id. 459.) Even if Mr. Pickering was entitled to notice of dishonor, it was given in time. (White v. The Continental Nat. Bk., 64 N. Y. 316; Bk. of Commerce v. Union Bk., 39 id. 230, 237.) Even if the draft had not been properly protested, and if a notice of dishonor were necessary, yet Mr. Pickering, as indorser, knowing all the facts and promising to pay it, is liable in the same manner as though the draft had been protested. (Richard v. Boller, 51 How. 371.)</p> <p>As the defendant was ignorant of the alleged alteration of the draft at the timé of his indorsement, and as he received no portion of the money obtained upon it, and no steps having been taken to charge him as indorser, he was not liable. (Case v. Bradburne, 1 Daly, 256; Bk. of Commerce v. Union Bk., 3 N. Y. 237.) By indorsing the draft defendant became liable, if charged as an indorser, but not otherwise. (Story on Promissory Notes [5th ed.], § 380.) The defendant by his indorsement at most contracted that the draft upon presentation and demand of payment of the drawee would be paid, and if not, upon due service of protest he would pay it. (Chitty on Bills, 266; Bayley on Bills [5th ed.], 170; Case v. Bradburn, 1 Daly, 256.) By indorsing the draft defendant became liable as an indorser, whether the draft was genuine or not, but he has never been charged as an indorser and is, therefore, not liable as such. (19 Hun, 230.) This delay in discovering the fictitious character of the draft was inexcusable, and should be held to discharge the indorser from all liability. (Story on Bills of Exchange [2d ed.], § 450.)</p>

This action was brought to recover damages for injuries occasioned by the explosion of a boiler which was being tested in a street, in front of defendants’ boiler manufactory, which explosion was alleged to have been caused by the negligence of defendants’ servant. The material facts are stated in the opinion.

This action was brought to foreclose a mortgage executed hy defendant Elizabeth M. Blake, who is wife of the defendant Clarence A. Blake, upon real estate owned hy her situate in the city of Buffalo, conditioned for the payment of six notes of $10,-000 each, executed by the firm of C. A. Blake & Co. to plaintiff,' of which firm said Clarence A. Blake was one of the partners.

(Reported below, 19 Hun, 350.) This action was brought upon two policies of insurance issued by defendant to plaintiff upon the life of her husband, Wisner Murray. The substance of the pleadings is set forth in the opinion. When the cause was called for trial defendant claimed the affirmative of the issue. This was denied, and exception taken. The defendant was entitled to open and close the case, and the-court erred in refusing it that right.

(Reported below, 22 Hun, 588.) This action was brought upon an undertaking given on appeal from an order of General Term reversing a judgment and granting a new trial. The undertaking was as required and in the form prescribed by the Code of Procedure then, in force (§ 334), to perfect an appeal; i. Upon the trial, defendants claimed that the recovery should be limited to the costs of appeal to this court and moved the court to direct a verdict for no greater sum.

The material facts are stated in the opinion. The affidavit on which the prior attachment was issued, being fatally defective, the junior attachment creditors had a right to move to set it aside. (Thayer v. Willett, 9 Abb. 325; Hall v. Stryker, 27 N. Y. 596; Frost v. Mott, 34 id. 253; Rinchey v. Stryker, 28 id. 45; Dwight's Case, 15 Abb. 262; Barry v. Fisher, 8 Abb. [N. S.] 382; Bridenbecker v. Mason, 16 How.

Levy, to set aside judgments of foreclosure and sale in the actions above entitled and the sale made thereunder. (Mem. of decision below, 22 Hun, 129.) The plaintiffs were trustees for bondholders under different mortgages, executed by defendant The New Jersey and New York Railway Company, and the actions were brought to foreclose said mortgages. The facts pertinent to the questions discussed are sufficiently stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made October 5, 1880, reversing an order of Special Term which denied a motion on the part of defendant Sherwood, for a modification of the judgment entered herein, by striking out the interest allowed, and granting the relief asked for. (Reported below, 22 Hun, 462.)</p> <p>This action was brought by plaintiff, an attorney, to recover for professional services and disbursements. The complaint stated the value of the services and the expenses, and asked judgment for the amount, Avith interest upon the items from dates specified. The summons and complaint were personally served; the complaint was verified; the defendants made default. Judgment was entered by the clerk, who computed interest as asked for in the complaint, and included it in the judgment. The Special Term denied the motion, but -allowed Sherwood to come in on terms and defend as to one of the counts of the complaint.</p> <p>The order of the General Term is an order “ affecting a substantial right and not resting in discretion ” which decides a “ question of practice,” and is reviewable here. (New Code, § 190, sub. 2.) The question of practice was correctly determined by the clerk. (Code, §§ 420-1212, 1213.) Even if the judgment was erroneous the error was judicial and one of. substance, and it could not be corrected on "motion. (Lillie v. Sherman, 39 How. Pr. 287; Libby v. Rosecrans, 55 Barb. 203; N. Y. Ice Co. v. N. W. Ins. Co., 32 id. 534.)- Upon the facts pnwed plaintiff was entitled to recover interest. (Adams v. Fort Plain Bk., 36 N. Y. 255; Mygatt v. Wilcox, 45 id. 306; 1 Lans. 56; Howe v. Heath, 3 Hun, 283.) The right to recover interest grows out of, and depends upon the duty or obligation to pay the principal debt, and should be allowed from the time the duty or obligation arises. (Van Rensselaer v. Jewett, 2 Comst. 135; Dana v. Fiedler, 2 Kern. 30.) The implied agreement of a client, when there is no express agreement, is that he will pay upon the termination of the proceedings what the services rendered therein shall he reasonably worth. The legal rights of the parties under such an agreement are precisely the same as though an express agreement had been made to pay at that time. (New Code, § 66; Bk. of Albion v. Smith, 27 Barb. 489.) The attorney has a lien on the fund recovered to the amount of the value of his services, and is considered an assignee to the extent of this lien. (Martin v. Hawks, 15 Johns. 405; Rooney v. Fifth Ave. R. R. Co., 18 N. Y. 405.) The rule of damages requires compensation to he made by the party in default. (Perrin v. Perrue, 10 Hun, 575; Reid v. Rensselaer Glass Factory, 3 Cow. 393; Van Buren v. Gaasbeck, 4 id. 496; Holmes v. Rankin, 17 Barb. 454; Hadley v. Ayers, 12 Abb. [N. S.] 240; McMahon v. Erie R. R. Co., 40 N. Y. 463; McCullom v. Seward, 62 id. 316.) When it can be- said, from the facts and circumstances of the case, that the parties understand that their relations with each other have been brought to a close, the obligation to pay is incurred and interest is allowed. (McMahon v. Erie R. R. Co., 20 N. Y. 463; McCullom v. Seward, 62 id. 316; Munn v. Vose, 67 id. 56; Delavalette v. Wendall, 75 id. 579; White v. Miller, 78 id. 393.)</p> <p>The plaintiff was not entitled to recover interest. His complaint did not contain a single statement to show that his claim had been liquidated. “ The recovery rested on a gucmtum meruit.” (Gallup v. Perue, 10 Hun, 575; Wright v. Hooker, 10 N. Y. 59; 36 id. 637; Argall v. Pitts, 78 id. 243; Frick v. White, 57 id. 107.) Defendants could not take the objection, that plaintiff was not entitled to interest, in any different manner than by motion. (Drake v. Cockroft, 10 How. 377; Hackett v. Richards, 3 E. D. Smith, 31, 35; Connoss v. Meir, 2 id. 314; Cutting v. Lincoln, 9 Abb. [N. S.] 436; Pierson v. Cooley, 1 C. R. 91; McKenzie v. Farrell, 4 Bosw. 192; Woodruff v. Cook, 25 Barb. 505; Hecker v. Degroot, 15 How. 314; Andrews v. Shaffer et al., 12 id. 443; Beale v. Hays, 5 Sandf. 640.) It is the duty of the clerk to simply look at the prayer for relief and enter judgment for its amount, if the complaint is verified. “ Or, at the plaintiff’s option, for a smaller sum.” (Code, § 1213.) The section contemplates that if the plaintiff, “ at his option,” takes a judgment not warranted by his sworn evidence, that the court will at “ its option ” set this wrongful act right and correct the judgment. (Matter of Carlton St., 9 Weekly Dig. 164; Dietz v. Fairish, 43 N. Y. Supr. 87.)</p>

(Reported below, 20 Hun, 143.) The nature of the action and the facts are sufficiently stated in the opinion. Plaintiff being a third party and not privy,to the contract or the consideration could not maintain this action. (Garnsey v. Rogers, 47 N. Y. 233, 240; Vrooman v. Turner, 69 id. 280, 284, 285; Simson v. Brown, 68 id. 355; Railroad Co. v. Curtiss, 80 id. 219; U. S. v. Maurice, 2 Brock. 109.) An estoppel does not operate in favor of a stranger.

. The objections raised to the assessment and the facts pertinent thereto are sufficiently stated in the opinion. The work for which the assessment was laid was a repavement, and it was, therefore, void. (In re Burmeister, MS., 76 N. Y. 174; In re Garvey, MS., Ct. of App. 1879; In re Phillips, 60 N. Y. 16; In re Burke, 62 id. 224; Dillon on Mun.

This action was originally brought against the Michigan Southern and Northern Indiana Railroad Company and its directors to recover dividends alleged to be in arrear upon certain preferred guaranteed stock issued by that company, and to compel that company and its directors to declare and pay such dividends.

<p>When there is an express limitation upon the authority of a general agent and this is brought to the knowledge of one dealing with him, the principal cannot be liable for an act of the agent within the limitation.</p> <p>A correct decision will not be reversed, on appeal, because founded upon a wrong reason; at least, unless where the ground of decision can be seen to have misled a party to his injury.</p> <p>A policy of insurance issued by defendant contained the usual condition forfeiting it in case of non-payment of premiums as" prescribed, also a provision to the effect that any alteration or waiver of its conditions, “ unless made at the head.office, and signed by an officer of said company,” shall not.be considered as valid. In an action upon the;policy the defense was that it was forfeited for non-payment of premium. Plaintiff proved . that after a premium had become due, H., who was claimed by plaintiff to be.general agent of defendant, stated to the assured that he had agreed to extend the time of payment and that it might be paid at any time before he made his report, and if the money was ready the,next morning it would be time enough ; that H. called the next morning and the premium was offered to him, but he declined to receive it because the assured was then sick, but promised to receive it if he recovered. He did not recover. Held, that conceding H. to be general agent, and that he had authority, unless restricted, to waive conditions, as his authority was limited by the provisions in the policy and so brought to the knowledge of the assured, he had no authority to waive the condition or to agree that it should be waived.</p> <p>As to whether, if the authority of H. had been unrestricted, what occurred would have amounted to a waiver, qumre.</p> <p>Defendant’s counsel moved for a nonsuit, on the grounds that no waiver had been proved and that H.had no authority to waive payment. The motion .was granted, “ on the sole ground that there was no. proof of a waiver.” Held, that, conceding the proof was sufficient to show a waiver if H. had authority; and so, that the trial court gave a wrong reason for its decision, yet, as the motion was properly granted because of want of authority in H., and as plaintiff was fairly and fully apprised of the-objection and was not misled, there was no ground for reversal.</p>

Knapp, deceased, to compel her attorney to pay over $4,411.50 alleged to have been unlawfully detained by him, out of moneys collected.

The objections to the assessment were that a part of the expense of the work was for rock excavation which was not submitted to competition, a price being fixed therefor which the bidders were obliged to accept; also that surveyor’s fees were included. The contract had been submitted to the commissioners appointed under the act chapter 580, Laws of 1872, and was certified by them to be free from fraud. The further material facts appear in the opinion.

February 4, 1881, which affirmed an order of Special Term, vacating an assessment on lands of the petitioner for regulating, grading, etc.,' One Hundred and Sixteenth street, in the city of Hew York. The facts sufficiently appear in the opinion. The board of revision and correction of assessments is a judicial body and its conclusions upon all matters within its jurisdiction are, to all intents and purposes, judgments.

(Reported below, 23 Hun, 251.) The motion was made under the Code of Procedure (§ 135); it was based on the ground that the affidavit upon which the order was granted did not state that defendant could not, after due diligence, be found in the State.

judgment in favor of plaintiff entered upon a verdict. This action was upon a policy of insurance issued by defendant, on the life of William Penfold, husband of the plaintiff, for her benefit. The material facts are set forth in the opinion. It being conclusively established by the evidence that William Penfold' died from the effects of a poisonous drug taken by himself, the court erred in leaving this question to the consideration of the jury.

<p>The provision of the act of 1873, in reference to the equalization of taxes (§ 1, chap. 337, Laws of 1873, amending the act chap. 313, Laws of 1859), providing that an appeal made by a supervisor, in behalf of his town, from any decision of the board of supervisors in the equalization and correction of assessment-rolls should be null and void in case the determination thereof was not made and filed with the clerk of the. board before the commencement of the next annual session, was repealed by the provision of the act of 1876 (§ 3, chap, 49, Laws of 1876), declaring that the State assessors shall certify their determination on such an appeal to the board of supervisors, “ and forward the same by mail, within ten days thereafter, to the clerk of said board.”</p> <p>Where, therefore, a decision was certified and forwarded by mail to the board within ten days after it was made and signed by the State assessors, but not until after the commencement of the next annual session, and the board omitted to carry the decision into effect, held, that a mandamus would lie to compel the execution of such decision.</p> <p>Also held, that the fact that the supervisors of several towns joined as petitioners for the writ was not a valid objection.</p> <p>It seems that if such an objection is good at any time, it is only available by motion to quash the writ; it does not affect the merits, and when the board has answered, and a demurrer to the. answer has been interposed, it must succeed, if at all, upon the facts alleged by it.</p>

<p>Plaintiff paid an assessment for a local improvement upon premises in the city of New York in which he held a valuable leasehold interest; he was bound, by a covenant in his lease, to pay all assessments. The proceedings in laying the assessment were regular upon their face. It was subsequently set aside, upon application of the landlord, which was pending when payment was so made. In an action to recover back the money so paid, held, that plaintiff was entitled to avail himself of the decision so obtained, and that defendant was liable.</p> <p>It seerfis that if payment had been made before any proceedings had been instituted to vacate the assessment the case could not have arisen, as no such proceedings can be maintained after payment.</p> <p>It seems, also, that the right of restitution only extends to the parties by whom or in whose behalf the proceedings to vacate were instituted; one property-owner cannot avail himself of proceedings instituted by another whose property is affected by the same assessment.</p>

(Eeported below, 18 Hun, 163.) This action was brought to recover back moneys paid by plaintiff to defendant as premiums upon four policies of insurance issued by defendant upon the life of plaintiff. The complaint alleged in substance that plaintiff made a verbal agreement with defendant’s agent for non-forfeiting policies; that said agent under that agreement, delivered the policies in question, which purported to have been issued by defendant.

This action was brought to recover wages and commissions alleged to have been earned under a contract of employment. Defendants pleaded a former suit in bar. It appeared that in June, 1878, plaintiff entered into defendants’ employment under a contract for one year at a weekly salary of $12, and a commission upon articles manufactured.

Hammer, purchaser at the sale under the judgment in this action, that Chauncey Smith, referee appointed to sell, pay to said purchaser the amount paid by the latter to discharge an assessment on the premises purchased by him ; and granted the relief sought. The action was for partition. The material facts are stated in the opinion.

The material facts are stated in the opinion. A trustee, guardian, executor or administrator is, in law, the owner of the personal property held by him as such. • It must be assessed to him where he lives. (1 R. S. 389, § 5 [1st ed.]; Lord v. Arnold, 18 Barb. 104.) The petitioner was properly assessed on account of the securities in question.

This action was brought to repudiate a purchase of bonds, claimed by defendants to have been made for plaintiffs, because of alleged breach of contract, and to recover back moneys paid by plaintiffs under the contract in alleged ignorance of the non-performance by defendants. The material facts are stated in the opinion.

review judgment entered upon an order made November 17, 1880, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Columbia, entered upon a verdict convicting the plaintiff in error of the crime of murder in the first degree. (Reported below, 23 Hnn, 60.) The facts material to the questions discussed are stated in the opinion.

of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made February 2, 1880, which affirmed a judgment in favor of defendant, entered-upon an order dismissing the complaint on trial. The nature of the action and the facts are sufficiently stated in the opinion. Actual imprisonment is not necessary' to constitute an imprisonment.

(Mem. of decision below, 21 Hun, 399.) Thez material facts are stated in the opinion. It is only where an accomplice is uncontradicted that a verdict based upon his testimony will be permitted to stand.

The action was commenced against Phelix Boylan, but he dying, was continued against Michael S. Boylan, as his administrator. Its object was to foreclose a mortgage made to one Owen Flaherty by Phelix Boylan, to secure the payment of his bond of $4,000. The bond and mortgage were assigned to Mesdames. Shancupp and Goldberg and by them to the plaintiff.

General Term of the Supreme Court, in the third judicial department, in favor of plaintiff, entered upon an order made April 8, 1880, which granted a motion for a new trial unless plaintiff stipulated to deduct from the verdict a sum specified, in which case judgment was directed, on the verdict as modified.

The nature of the action and the facts are set forth sufficiently in the opinion. The plaintiffs, on the receipt of notice to discontinue, had no right to proceed any further in the performance of the contract, and the defendants became liable for the fair value of the part already performed, and for damages in addition. (Dillon v. Anderson, 43 N. Y. 232; Clark v. Marsiglia, 1 Den. 318; Niblo v. Binsse, 3 Abb. Ct. App.

The nature of the action and the facts are set forth sufficiently in the opinion. It was error to receive evidence that the mirror frames became a part of the realty. (Foote v. Beecher, 78 N. Y. 157; Ayers v. Water Comm’rs, 22 Hun, 299.) They were matters of furniture for which no lien could be had. (McKeage v. Hanover Ins.

(Reported below, 20 Hun, 206.) ■ This action was brought by plaintiffs, as judgment creditors of defendant George E. Wing, to ■ set aside a conveyance of a farm in Dutchess county, from said defendant, through a third person, to his wife, the defendant Caroline Wing. The court found these facts among others: “ On the 1st day of May, 1844, the defendant Caroline had become entitled to the sum of $1,666 from the estate of her father.

(Reported below, 19 Hun, 526.) This action was brought by plaintiff, as the widow of Christopher Jordan, to recover an alleged dower interest in certain lands in the city of Rochester. In March, 1852, said Christopher, who was then the owner of the lands, deeded them to his brother, George W. Jordan. Plaintiff did-not join in the deed. Defendant claimed title under a sale by virtue of a judgment in a partition suit.

<p>Proceedings under the confiscation acts of Congress of 1861 and 1863 were not simply in rem, but the right to condemn property under them depended upon the delictum of the owner, whom it was necessary to bring into court in some manner so that he could have a hearing.</p> <p>Plaintiff was the owner of eighty-four shares of defendant’s stock, the certificate whereof was issued to her in 1859, in her then maiden name, “ Miss Verina S. Moore,” which certificate she still holds. She then resided in Newberne, N. C. She received the dividends on said stock up to January 1,1861, when she married Mr. Chapman. Up to December, 1865, she resided with her husband in Asimile, N. C., and in Talladega county, Ala., taking no part in the rebellion. In February, 1864, the U.-S. marshal, under directions of the U. S. district attorney, addressed a letter to defendant notifying it that he seized eighty-four shares of its» stock and the dividends thereon belonging to “ Ver. S. Moore, now or late of Newberne, N. C.” A libel of information was then filed in the U. S. District Court describing the stock as in said letter, without giving the number of the certificate, and alleging that the property so seized belonged to “ Ver. S. Moore, a rebel,” without stating any residence, who, it was alleged, since the passage of the confiscation act of 1863, had acted as an officer of the rebel army, as a member of the congress and as a j udge, commissioner and agent of the Confederate States. The information was not verified. Such proceedings were had thereon that a judgment was entered by default, condemning the property which was described as belonging to “Ver. S. Moore,” directing the bank to cancel the certificate issued to that person, the number of plaintiffs certificate being then for the first time given; to issue a new certificate and to pay the dividends to the clerk of the court, and directing the issuing of. a writ of venditioni exponas. Defendant obeyed the directions in the decree. Plaintiff had no notice of the pendency of these proceedings. In an action to recover dividends, held, that plaintiffs title to the stock was not affected by the confiscation proceedings; and that they constituted no defense.</p> <p>Plaintiff presented a petition in the U. S. District Court praying that the decree of confiscation and all proceedings under it be set aside and vacated ; this was denied. Held, that this did not validate the decree or prevent her from asserting her claim.</p>

(Reported below, 20 Hun, 355.) This action was brought by plaintiff, as receiver of the Secor Manufacturing Company, to set aside a mortgage upon its property executed by it. Said company was organized under the act authorizing the formation of corporations for manufacturing purposes. (Chap. 40, Laws of 1848.) Its capital stock consisted of- five thousand shares, all of which had been duly issued and recorded upon the books of the company prior to the 1st of January, 1814.

(Mem. of decision below, 24 Hun, 378.) The nature of the proceeding and the facts are stated in the opinion. An order of the General Term, affirming an order of the Special Term, confirming the report of commissioners of estimate and assessment, in a street opening proceeding, is appealable to. the Court of Appeals where the question raised is one affecting the constitutionality of the act, under authority of which the proceeding was instituted.

This action was brought by plaintiff, as a judgment creditor of the defendants, John E. and Isaac E. Hoagland, who composed the firm of Hoagland & Son, to set aside as fraudulent an assignment of their copartnership and individual property, executed by them to the defendant, Goetschius. The facts appear sufficiently in the opinion.

Appear from judgment of, the General Term of the Superior Court of the city of Hew York, entered upon an order made April 5, 1880, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial without a jury, and affirmed an order denying a motion for a new trial. This action was upon a policy of insurance. Its material provisions and the pertinent facts are set forth in the opinion.

(Reported below, 16 Hun, 57.) ■The nature of the Special Term order and the material facts appear in the opinion. When a party asks a.favor of a court, any reasonable terms may be imposed unless the discretion is regulated or limited by some statute. (In re Com’rs Wash.

' Appeal from order of the General Term of the Supreme Court, in 'the first judicial department, made May 6, 1880, which affirmed an order denying a motion on the part of plaintiff for a judgment on the report of a referee herein. (Reported below, 24 Hun, 489.) This action was brought to have a judgment for divorce between the defendants canceled, and the marriage of plaintiff with defendant Theresa declared void.

<p>Appeals by certain registered and non-registered .policy-holders from order of the General Term of the Supreme Court, in the first judicial department, made February 11, 1881, which affirmed an order of Special Term, declaring the basis upon which the receiver of the North American Insurance Company should declare dividends from what is termed the general fund of said company.</p> <p>The provision of the Special Term order in question is as follows:</p> <p>“ It is ordered, that in providing for the payment of a dividend from the general fund, the holders of both registered and non-registered policies and annuity bonds are entitled to a share therein, and that in declaring such dividend the holders of registered policies and annuity bonds shall be charged with the amounts they have received or may receive from the special or registered fund, and that their claims shall be reduced accordingly, and a dividend from the general fund shall be paid upon the balance only which shall remain after deducting the said payments received or to be reeeivedfrom said special fund as aforesaid, and the dividend to holders of the non-registered policies and annuity bonds shall be pro rata upon the amount of their claims.”</p> <p>The doctrine of election between two funds can never be applied where the election would be injurious to the creditors forced to make it. (Jervis v. Smith, 7 Abb. Pr. [N. S.] 217; Midgeley v. Slocomb, 2 id. 275; Evertsen v. Booth, 19 Johns. 486; Aldrich v. Cooper, 2 Lead. Cas. in Eq. 56, and notes; Mason v. Bagg, 2 Myl. & Cr. 446; In re Anderson, 12 B. R. 502; Hugo v. Broich, 15 id. 11; William Lloyd, id. 257; In re Dow, 14 id. 307.)</p> <p>Equitable assets should be distributed among all the creditors, pro rata, without giving preferences. (Willard’s Equity, 48.) The fund pledged for the payment of the registered policies was the registered fund, and that alone. The general fund did .not enter into the contemplation of the parties and was not relied upon. (Laws of 1868, chap. 623; Hort’s Case, 5 Big. L. & Acc. 715.) In equity, any fund should bear the expense of its own distribution. (2 Daniels’ Ch. Pr. 1411 et seq.; 2 R. S. [Edmunds’] 47, §r 29.)</p> <p>The registered fund is a primary fund for the registered policy-holders, in the sense that no one else has any interest in it until their claims have been satisfied. After that, for any balance due they have the same rights as to the general fund of the company as any other policy-holder. (Jervis v. Smith, 7 Abb. Pr. [N. S.] 217; Midgeley v. Slocomb, 2 id. 275.)</p> <p>The decision at Special Term, giving the registered policy-holders a pro rata claim for their unpaid balance in the general assets, is not only just and equitable, but in accordance with the spirit and intent of chapter 902 of the Laws of 1869. (Gadsden v. Carsen, 9 Richardson’s Eq. [S. C.] 252; Wilson v. McConnell, id. 500.)</p> <p>It was proper for the receiver to apply to the court for instructions. (In re Security L. Ins. Co., 79 N. Y. 267.) The order was right, and is not to be reviewed upon any general view of the rights of a creditor of an insolvent who has two funds, to either of which he can at pleasure resort for the payment of his debt. (Jarvis v. Smith, 7 Abb. Pr. [N. S.] 217; Midgeley v. Slocomb, 2 Abb. [N. S.] 275; Amory v. Francis, 16 Mass. 308; Farnum v. Boutelle, 13 Metc. 159; Evertsen v. Booth, 19 Johns. 485; Cheesebrough v. Millard, 1 Johns. Ch. 409, 413; Brinkerhoff v. Marvin, 5 id. 321, 328.)</p>

<p>These were appeals by land-owners from orders of the General Term of the Supreme Court, in the first judicial department, made February 15, 1881, which affirmed certain Special Term orders, the substance of which with the material facts are set forth in the opinion. (Reported below, as to one of the appeals, 21 Hun, 199.)</p> <p>The order affirming order denying motion to set aside report is appealable under section 90, subdivision 3, of the Code. (Code, tit. 5, chap. 12, §§ 1356, 1357, 1358.) The order appealed from is a final order within the meaning of the Code. (Matter of R. & S. R. R. Co., 43 N. Y. 137; S. C., 55 id. 145; Matter of B. & A. R. R. Co., 53 id. 573; Matter of Janner, 78 id. 601; Bergen v. Carman, 79 id. 146; Matter of Elevated R. R., 78 id. 383; Com'rs of Washington Park, 56 id. 144; N. Y. C. R. R., 49 id. 414; Long Island R. R., 45 id. 364; City of Buffalo, 64 id. 547; People v. Pinkerton, 77 id. 245; Matter of L. & B. R. R., id 557; Boston & C. R. R., 79 id. 64-69; Freeholders of Irondequoit, 68 id. 377; Freeholders of Cattaraugus, 59 id. 316; Military Parade Ground, 60 id. 319; Matter of Rochester Com’rs, 66 id. 413.) The application to set aside the report was a remedy or “ prosecution of a right ” under the definition of the Code and the order upon it, therefore, appealable. (Code, §§ 3333, 3334; Belknap v. Waters, 1 Kern. 478; Ludlow v. Knox, 7 Abb. [N. S.] 411; Erie R. R. v. Ramsay, 45 N. Y. 637; Brinkley v. Brinkley, 47 id. 40; Sixth Ave. R. R. v. Gilbert El. R., 71 id. 434.) In this case the order was not discretionary. (Matter of Mayor, etc., 49 N. Y. 150; Matter of N. Y. Central, 64 id. 60.) Discretionary orders are appealable where the discretion is improperly exercised or withheld. (People ex rel. Gas-light Co., 78 N. Y. 57; City of Buffalo, 64 id. 547; Tripp v. Cook, 26 Wend. 143; Howell v. Mills, 53 N. Y. 322; Fisher v. Hepburn, 48 id. 41; Watertown Bk. v. Mix, 51 id. 558.) The order of General Term, affirming the order confirming the report, and the orders denying the motions to set it aside and to send it back, brought up for review under it, is appealable to this court. (Code, § 190, subd. 3; Code, §§ 1356, 1357, 1358, 1361; Matter of Central Park, 61 Barb; 45, 46; King’s Bridge Road, 4 Hun, 599, 601, 602; R. & S. R. R. Co., 43 N. Y. 137; 55 id. 145; Matter of Townsend, 39 id. 171; Rochester Water-Works, 66 id413; Bloomfield, etc., Gas Co., 62 id. 386; Long Island R. R., 45 id. 364; R. & A. R. R. Co., 53 id. 575; L. & B. R. R., 77 id. 557-632; B., etc., R. R., 79 id. 64; N. Y. C., 49 id. 414; 77 id. 249.) Orders of confirmation in proceedings under the railroad act are appealable. (In re Townsend, 39 N. Y. 171; Bloomfield Gas Co., 62 id. 386; Rochester Water-Works, 66 id. 413.) So also are other orders in railroad proceedings where substantial rights are involved. (R. & S. R. R., 43 N. Y. 137; 55 id. 145; B. & A. R. R., 53 id. 574; Canal & Walker Sts., 2 Kern. 411; Kings Co. El. R. R., 78 N. Y. 383; Matter of Ryers, 72 id. 4; Lockport & B. R. R., 77 id. 557; Long Island R. R., 45 id. 364.) The motion to set aside the report should have been granted; under the facts and circumstances of the case it was a substantial right. (Matter of N. Y. C. & H. R. R. R., 64 N. Y. 60; S. C., 5 Hun, 105; Matter of Mayor, etc., 49 N. Y. 150; S. C., 42 How. Pr. 220.) The declaration of the statute that the report shall be final did not preclude the court from setting it aside upon motion. (Matter of Mayor, 49 N. Y. 150; Matter of N. Y. C., 64 id. 60.) The motion to send the report back or set it aside should have been granted. (Matter of Boston, etc., R. R., 22 Hun, 177; Matter of Commissioners, 61 Barb. 42; Matter of City of Brooklyn, 73 N. Y. 186; Potter v. Carpenter, 71 id. 74; Quincey v. Young, 53 id. 504; Biglen v. Pinkney, 80 id. 636; In re Flatbush Ave., 1 Barb. 286; Matter of Central Park, 51 id. 277, 355; Matter of Commissioners, 61 id. 42; Van Slyke v. Hyatt, 46 id. 259; Matter of John and Cherry Sts., 19 Wend. 660, 678; In re N. Y. C., 6 Hun, 149; Meacham v. Burke, 54 N. Y. 220; Matter of William and Anthony Sts., 19 Wend. 678, 698; Matter of Pearl St., id. 651, 656; Boston & H. T. R. R., 22 Hun, 177.) The words of the statute that the second report shall be final and conclusive do not divest the Superior Courts of jurisdiction over it, or take away the right of review. (Rex v. Morly, 2 Burrows, 1040; Smith v. Commissioners, 2 Mod. 45; Keigly's Case, 10 Coke, 138 and note; Rex v. Commissioners, 2 Keble, 83; 2 Hawkins’ Book, chap. 27, § 23; 1 Ld. Raymond, 580; King v. Jukes, 8 T. R. 542; Matter of Canal and Walker Sts., 2 Kern. 412; Lawton v. Commissioners of Highways, 2 Cai. 182; Matter of Bradhurst, 16 Johns. 13; Ex parte Heath, 3 Hill, 51, 52; People v. Freeman, 3 Lans. 149; Le Roy v. Mayor, 2 Johns. 430; Ex parte Mayor, 23 Wend. 287; Matter of Kingsbridge Road, 4 Hun, 601; People v. Canal Board, 7 Lans. 222.) “ Due process of law ” means the same as “ law of the land,” and implies that regular course of judicial proceedings in practice when the Constitution was framed. (Pomeroy on Const. Law, §§ 246, 248, 250; Cooley on Const. Lim., chap. 11, p. 351, and note; Taylor v. Porter, 4 Hill, 140; Hickock v. Scribner, 3 Johns. Cas. 315; Stuart v. Palmer, 74 N. Y. 191; Westervelt v. Gregg, 12 id. 209; Matter of N. Y. C., 64 id. 60.) The provision that the report shall be final is unconstitutional and void, because it abridges and curtails the established jurisdiction of the Supreme Court over such inferior tribunals. (De Hart v. Hatch, 3 Hun, 375; Alexander v. Bennett, 60 N. Y. 204; Matter of Nichols, 79 id. 82.)</p> <p>The general railroad act does not give the court power to set aside the rep.ort of commissioners, upon motion, and it is only on appeal from the report that a new appraisal may be ordered and commissioners appointed under the statute. (Albany & N. R. R. v. Crane, 7 How. Pr. 164; N. Y. & E. Ry. v. Corey, 5 id. 177; N. Y. & E. Ry. v. Coburn, 6 id. 223; Rochester & S. R. R. v. Budlong, id. 467; Rochester, etc., v. Beckwith, 10 id. 169.) The Supreme Court has the same power to vacate the report in this case for misconduct as it would have to set aside the verdict of a jury or the report of a referee. (Matter of the N. Y. C. R. R. Co., 64 N. Y. 60.) This being the second report in this case, the statute (§ 18, General Railroad Law) makes it '■final and conclusive upon all parties. (McAllister v. The Albion P. R. Co., 10 N. Y. 353; The People, ex rel. S. & N. H. R. R. Co., v. Betts, 55 id. 600; In re N. Y. C. R. R. Co. v. Marvin, 1 Kern. 276.) The order of the General Term is not appealable to this court. (Gray v. Fisk, 53 N. Y. 630; Livermore et al. v. Bainbridge, 56 id. 72; Matter of N. Y. C. R. R. Co., 64 id. 60.) The question as to whether the damages awarded by the commissioners were awarded-upon-proper grounds, or were sufficient, 'was not open upon this motion. (Matter of N. Y. C. R. R. Co., 64 N. Y. 60.)</p>

The attachment was levied upon certain real estate.' The motion to vacate was made by Kelson Sherwood, upon the papers upon which the attachment was granted and upon his affidavit showing that after the levy, but before judgment, defendant conveyed to him a part of the lands levied upon, he taking title without knowledge of the levy. Reasons were also assigned for delay in making the motion.

the General Term of the Supreme Court, in the first judicial department, made November 26, 1880, which affirmed an order of Special Term denying a motion to vacate an order of arrest herein. (Reported - below, 22 Hun, 565.) The facts are sufficiently stated in the opinion. The arrest of defendant was not warranted under section 552 of the Code of Civil Procedure.

These were cross appeals by Moritz Cohn and James A. West, stockholders, and Francis M. Bixby, receiver of the above-named, The Wov'en Tape Skirt Company, from an order óf the General Term of the Supreme Court, in the first judicial department, made March 20, 1880, which modified an order of Special -Term fixing the amount of. fees to be allowed to said receiver, by reducing the allowance from $7,775 to $4,000.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 9,1880, affirming a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>The nature of the action and the facts are sufficiently set forth in the opinion.</p> <p>The referee erred in charging defendant with the face of the mortgage given to her on the sale to Mr. Frost. (Culver v. Sisson, 3 N. Y. 264; Salisbury v. Phillips, 10 Johns. 57; Ward v. Coull, 14 Barb. 243.) The referee erred in refusing to allow defendant interest on his advances to the business. (Lloyd v. Carrier, 2 Lans. 364; Dougherty v. Van Nostrand, 1 Hoff. Ch. 39; Andrews v. Andrews, 3 Brad. Surr. 99; Reid v. Rensselaer Glass Co., 3 Cow. 399, 426, 427; affirmed, 5 id. 587; Leotard v. Graves, 3 Caines, 234; Lessees of Dilworth v. Sinderling, 1 Binn. 488; Trotter v. Grant, 2 Wend. 413; Bruce v. Campbell, 3 Camp. 461; Rex v. Smith, 8 Vt. 361; Jennison v. Hopgood, 10 Pick. 77, 102; Liddell v. McVickar, 6 Halstead, 44.) To constitute persons partners as between themselves there must be an interest in the profits, and each party must, by the agreement, participate in some way in the losses as well as the profits. (Patterson v. Blancher, 5 N. Y. 186, 190; 1 Daly, 521; 17 Ves. 411; Smith v. Bodine, 74 N. Y. 30, 33.) Though one be expressly named in articles as a partner, if he have no interest in the stock, he is not inter sese a partner. (Gidden v. Wallace, 2 Bligh, Par. 270, 302.)</p> <p>The partnership relation was not ended or Beach’s rights affected by a private arrangement between Inglis and Colles to the effect that Inglis might draw out $1,800 a year without regard to the condition of the business, and that Colles should have all the profits. (Parsons on Partnership, 249, 258.) The facts as to Inglis’ contribution to capital is not reviewable here.' (Code of Civil Procedure, § 1337.) A partner cannot have interest on loans to his firm, unless there is a special agreement to pay interest, or unless it is shown to be the practice of the firm or the custom of the trade it carries ón to allow such interest. (1 Lindley on Partnership, 786 [4th ed.]; Ex parte Chippendale, 4 De Gex, McN. & G. 36, 43; Stevens v. Cook, 5 Jurist [N. S.], 1415; Reid v. Rensselaer Glass Factory, 3 Cow. 373, 425-436; Rensselaer Glass Factory v. Reid, 5 id. 587, 593, 627.)</p>

This action was brought by plaintiff, as assignee of Henry F. Tiemeyer, to recover the amount of an account for grocercies alleged to have been sold by the assignor to defendant, a married woman. The facts are sufficiently set forth in the opinion. The foundation of a judgment against a married woman is a separate estate or trade, and the power to charge the separate estate arises not from the nature and ownership of the estate, but from the enabling effect of the statute.

This action was brought to recover an alleged balance due plaintiff from defendant for services. A verdict was rendered for plaintiff for $228.58. Defendant noticed its costs for taxation, and upon the bill of costs, the pleadings and the clerk’s minutes of trial, said clerk decided that defendant was entitled thereto and accordingly taxed the same.

?’ (Reported below, 23 Hun, 327.) The material facts are stated in the opinion; The legislature had jurisdiction • to enact chapter 574 of Laws of 1871, and to provide in it that the certificate of the commissioner of public works shall be conclusive evidence of the amount of the expenditure for regulating, etc., streets, etc., in Hew York city.

This action was brought upon two promissory notes made by “the Lawrence Brewing Company,” which, plaintiff alleged, was the name under which a copartnership, of which defendants were members, did business. Defendant White alone appeared and defended. He alleged that, at the time of the mating the notes, he was not a member of the firm, he having prior thereto retired therefrom, of which fact plaintiff then had knowledge.

These were appeals from, two orders of the G-eneral Term of the Supreme Court, in the first judicial department,- both made December 10, 1880; the one in the matter first above entitled affirming an order of Special Term which denied an application of the petitioner to vacate an assessment upon certain lots belonging to him in the city of New York, for paving One Hundred and Forty-fifth street from Seventh avenue to the Boulevard; the other, in the matter second above…

<p>Appeal from order of the G-eneral Term of the Supreme Court, in the first judicial department, made January 28,1881, which reversed an order of Special Term, denying an application for a mandmius, and ordered the issuing of a writ directed to defendant Jackson, as auditor of accounts of the city of New York, requiring him to audit and allow a voucher sent to the finance department of the city hy the clerk of the hoard of education, in favor of the widow or legal representatives of Edward E. Burnet. (Reported helow, 23 Hun, 568.)</p> <p>The material facts are set forth in the opinion.</p> <p>No valid claim in behalf of the relator’s intestate existed against the trustees of the College of the City of New York for the period subsequent to his death. (Chap. 396, Laws of 1849; chap. 386, Laws of 1851; chap. 301, Laws of 1853, § 9; chap. 101, Laws of 1854, § 2, subd. 8; chaps. 264, 632, Laws of 1866; chap. 471, Laws of 1872; chap. 112, Laws of 1873; Wolf v. Howes, 20 N. Y. 197; Clark v. Gilbert, 26 id. 279.) The right of a public officer to compensation does not grow out of any contract, but arises from the rendition of services. (Smith v. Mayor, 37 N. Y. 518.) The trustees of the College of the City of New York had no authority or jurisdiction to audit or allow a claim not legally binding upon the corporation. (1 R. S. 600, § 3 [6th ed., vol. 2, p. 391]; Hodges v. City of Buffalo, 2 Denio, 110; Halsted v. The Mayor, 3 Comst. 430, 435; Haswell v. The Mayor, Ct. of App., June, 1879.) The power to grant gratuities, even as additional compensation, in excess of the lawful salary or fee, for service actually performed, does not exist in administrative agencies created by the legislature to exercise power defined by statute. (Heslep v. Sacramento, 2 Cal. 580; Hatch v. Mann, 15 Wend. 44; Palmer v. Mayor, 2 Sandf. 318; Cowen v. The Mayor, 6 N. Y. Sup. Ct. [T. & C.] 151; Supervisors v. Ellis, 59 N. Y. 620.) The allowance of the claim by the trustees of the College of the City of New York, being an excess of jurisdiction, was a nullity, and not binding upon the auditor. (People v. Lawrence, 6 Hill, 244; People v. Stout, 23 Barb. 349, 354; People v. Hawes, 21 How. Pr. 117, 125; O'Leary v. The Board of Education, April 5, 1880, Gen. Term of Ct. of Com. Pleas; Chemung Canal Bank v. Supervisors of Chemung, 5 Denio, 517.)</p> <p>The* trustees have power to allow suitable compensation to such subordinate officers as the business of the corporation requires. (2 R. S. [6th ed.] part 1, chap, 15, title 1, art. 2, § 36, p. 12; 2 R. S. [6th ed] part 1, chap. 18, title 3, art. 10, § 1, subd. 4, 5, p. 391.) The money, therefore, which is raised and collected by the board of supervisors, at the request of the trustees of the college, is their money, and is to be disbursed by them in discharge of the trust reposed in them by. the law incorporating the college, and for its misuse it is clear they are responsible. (People ex rel. Murphy v. Kelly, 76 N. Y. 490.) The fund being in the city treasury, it became necessary, under section 34 of the charter (Chap. 335, Laws of 1873), to have the audit of the auditor and the warrant of the comptroller to authorize its withdrawal. (Dannat v. The Mayor, 66 N. Y. 585.) The comptroller has no discretion to exercise over any payments or accounts other than those of the various departments of the city, as prescribed by sections 29 to 36 of the charter of 1873. (People ex rel. Little v. Kelly et al., Supr. Ct., first dep., August, 1878; People ex rel. Murphy v. Kelly, 76 N. Y. 490.) The order of the college for the payment- of $844 operated as an equitable assignment of so much of the fund raised by request of the'trustees, and deposited with the chamberlain, as was specified in it. (People ex rel. Dannat v. Comptroller, 77 N. Y. 48; N. Y. Bal. Dry Dock Co. v. Mayor, etc., 8 Hun, 247; People ex rel. Kedian v. Neilson, 5 T. & C. 367.) Colleges incorporated under the Revised Statutes have the privilege of giving what they may consider “ suitable ” compensation to their subordinate officers. (2 R. S. [6th ed.] 391, § 1, subd. 5.)</p>

” (Reported below, 24 Hun, 350.) The General Term having held that it had no power to review the order, a question of law arose. Hence the order dismissing the appeal is appealable to this court. (New Code, § 190, subd. 2; Hanover Ins.

order made May 24, 1879, affirming a judgment in favor of defendants, entered upon the report of a referee.

) The nature of the action and the facts are sufficiently stated in the opinion. The court erred in allowing a material amendment to the complaint to be made summarily upon the trial by the addition of new parties who did not appear, and by compelling the defendant to continue the trial in the absence of these parties, and by denying his application for leave to answer thé complaint thus amended.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made January 30, 1880, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Tern).</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The court has no jurisdiction of an action against an assignee in bankruptcy, the object of .which is to distribute the assets of the bankrupt. (U. S. R. S., §§ 711, 4972; Kidder v. Horrabin, 72 N. Y. 167.) The moneys represented by the certificate of deposit were, by its terms, not due until its return, and such is its legal construction. (Adams v. Orange Co. Bank, 17 Wend. 514; Downes v. Phœnix Bank, 6 Hill, 297; Kingston Bank v. Gay, 19 Barb. 460; Story on Bailments, 66, § 68; Marzitti v. Williams, 1 Barn. & Ald. 415; Merritt v. Todd, 23 N. Y. 29.) It was not negotiable, and no action could be maintained on it without a demand. (Curtis v. Leavitt, 15 N. Y. 263; Fort v. McCully, 59 Barb. 87; Payne v. Gardiner, 29 N. Y. 146.) Notice at that time that these securities were surrendered was of no importance. (Hoge v. Lansing, 35 N. Y. 136; Howard Banking Co. v. Welchman, 6 Bosw. 280.) It was plaintiff’s duty to set up the securities in the suit upon his note by the Albany City Bank, and having failed to do so, he cannot now be heard to complain. (Dobson v. Pearce, 12 N. Y. 156; McHenry v. Hazard, 45 id. 587; Winfield v. Bacon, 24 Barb. 155; Philips v. Gorham, 17 N. Y. 270; Bartlett v. Judd, 23 Barb. 262; Erie Railway Co. v. Ramsey, 45 N. Y. 637; Savage v. Allen, 54 id. 458, 463; Sheehan v. Hamilton, 2 Keyes, 304; Winfield v. Bacon, 24 Barb. 154; Schell v. Erie R. Co., 51 id. 368; Cummings v. Morris, 25 N. Y. 625; Pitcher v. Hennessey, 48 id. 415-422; Allerton v. Belden, 49 id. 373.) If the assignee was a necessary party, it was the duty of the present plaintiff to cause him to be brought in as a party to the other, or former suit. (Old Code, § 122; Groshon v. Lyon, 16 Barb. 461; Ogden v. Bodle, 2 Duer, 611; Mills v. Block, 30 Barb. 549; Dickinson v. Codwise, 4 Edw. Ch. 341; Story’s Eq. Pl., §§ 735-738.) At no time while the Farmers and Mechanics’ Bank owned plaintiff’s note, were the note and certificate subject to set-off. (Wells v. Stewart, 3 Barb. 40.) A right of subrogation does not" spring into existence till the party holding the claim sought to be acquired is paid. It is the payment that gives the right of subrogation or substitution. (Story’s Eq. Jur., §§ 635, 636, 637.)</p> <p>The Farmers and Mechanics’ Bank being bankrupt and in tbe hands of an assignee, a return of the certificate was unnecessary; it was due so that plaintiff could set it off against his note.' (Smith v. Felton, 43 N. Y. 419.) Plaintiff had a right to set off the certificate in equity. (Matter of Van Allen, 37 Barb. 228; Holbrook v. Receivers, etc., 6 Paige, 220; Lindsay v. Jackson, 2 id. 581; Smith v. Felton, 43 N. Y. 420; Willard’s Eq. Jur. [Potter’s ed.] 1004, 1006, 1016, 1019, 1021; Story’s Eq. Jur., §§ 1433-1443; Adams’ Eq. Jur. 273, marg.; Matthews v. Aiken, 1 Comst. 595, 598; Story’s Eq. Jur., §§ 559-570, 633-644.) The right of the plaintiff, as between him and the assignee of the Farmers and Mechanics’ Bank, to extinguish his note, by applying thereto so much as was necessary of his certificate, is clear under the bankrupt law. (U. S. R. S. [Boutwell’s Revision], § 5073; Bump on Bankruptcy, 86 [8th ed.]; In re Petrie, 5 Benedict, 110.) This equitable right of set-off of mutual demands is superior to the rights of creditors of an insolvent estate or of a deceased party to have all debts paid ratably. (Willard’s Eq. Jur. 1001; Richardson v. Parker, 2 Swan [S. C.], 529; Fennell v. Nesbitt, 16 B. Monr. 351; Holbrook v. Receivers, etc., 6 Paige, 221-231.) The State court had full jurisdiction in the premises, the case being one of the application of ordinary and well-settled principles of equity, and not one pertaining to the special and peculiar privileges of a court of bankruptcy. (Kidder v. Horrobin, 72 N. Y. 159; Cook v. Whipple, 55 id. 150; Claflin v. Housemam, 93 U. S. 130.)</p>

<p>It seems that where a person takes out a policy of insurance upon his own life, and the amount is made payable to another having no interest in the life, or where the insured assigns his policy to one having no such interest, the beneficiary or the assignee may hold and enforce the policy, if it was valid in its inception, and was procured or the assignment made in good faith.</p> <p>In 1846, L. procured a policy of insurance on his life, payable to plaintiff, as trustee for H., the wife of L. H. died intestate in 1857. In 1861, L. married M., and in 1864 plaintiff, upon the request of L., for value received, assigned the policy to M. L. died intestate in 1878, leaving M., his widow, and one child by her, and several children by his first wife, surviving him. He paid the premiums upon the policy up to his death. In an action to determine conflicting claims to the moneys paid upon the policy, the court found that it was the intention of L., when he procured the policy and paid the premiums, that its avails should go to his widow, if he left one, not to his children. Held (Miller and Daheorth, JJ., dissenting), that during the life of H. the policy was her property, and upon her death the title vested in Li, her husband, as survivor, J. then becoming, by operation of law, his trustee,, and the policy continuing valid in his hands; that the assignment vested the title in M., and that ■she alone was entitled to the moneys paid thereon.</p> <p>Also held, that the common-law right of survivorship, in the husband, in such case, was not affected by the statute in respect to insurance upon the lives of husbands for the benefit of their wives. (Chap. 80, Laws of 1840, as amended by chap. 77, Laws of 1862, and by chap. 821, Laws of 1878.)</p> <p>Eadie v. Slimmon (26 N. Y. 9), and Barry v. E. L. A. Society (59 id. 587), distinguished.</p> <p>It seems that, had the assignment been executed without consideration, it would have been valid and effectual.</p>

<p>Decided on the-facts.</p>

This was an appeal from an order of General Term, affirming an order of Special Term vacating an assessment for a sewer in Eleventh avenue, in the city of New York.

This- was a motion to, strike this cause from the calendar. The plaintiff recovered a judgment against the defendant in the City Court of Brooklyn for $12,515.97. It was reversed by the General Term of that court, and a new trial granted. The plaintiff appealed from that order and, claiming to sue as trustee, obtained from the City Court an order dispensing with security on the appeal. The defendant appealed from that order, and its appéal is still pending.