Volume 9 — New York State Reporter

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

<p>Pleading—Answer—What is sham and frivolous</p> <p>In an action against the sureties upon an undertaking given on behalf of one who was arrested in an action brought against him. and prosecuted to judgment, it was set up as a defense that th y were released from their liability on the undertaking, because of an extension of time granted to their principal. The only evidence adduced to substantiate this claim was that contained in a stipulation, by which the argument of a motion to open a judgment obtained by default was adjourned, and it was agreed that during the time covered by such adjournment, no execution should be issued against the person of the defendant By the stipulation, the execution against the property which had not been returned was not stayed, but was in full force. Held, That no proceeding against the principal was delayed, as the execution against the person could not issue until return of that against the property, and that the answer containing. such matter as a defense was sham and frivolous</p>

<p>Appeal from a judgment of the court of general sessions convicting the defendant of the crime of larceny in the second degree, and also from an order denying a motion for a new trial.</p>

<p>Evidence—Competency op.</p> <p>In an action brought to recover compensation for work alleged to have-been performed in accordance with the terms of a contract, it was claimed, that the terms of the agreement had not been complied with by the plaintiff. Certain leaks appeared in a sheathing which it was the part of the plaintiff to construct in such a manner as to be water-tight. These, it was claimed by him, were caused by the negligent acts of the defendant; and evidence was adduced proving that this particular variety of sheathing had in other circumstances proved effectual for the purposes which it was-here designed to fulfill. Held, that such evidence was properly admitted.</p>

<p>1. Usury—Does not ■ necessarily give a creditor of a mortgagor a RIGHT TO SET ASIDE MORTGAGE AS FRAUDULENT.</p> <p>The fact of the usurious character of a loan to secure which a mortgage is executed, does not render the transaction fraudulent, and does not necessarily give a creditor the right to intervene to set aside the security.</p> <p>2 Conveyances made in fraud of creditor -may be set aside in one action.</p> <p>Conveyances made to different grantees, in pursuance of a design to defraud the creditors of the grantor, may be attacked by a judgment creditor in a single action, there being but one cause of action, although' affecting different individuals.</p> <p>3. Same—What causes of action improperly joined.</p> <p>The mere fact that certain conveyances made are deemed to have been in fraud of creditor of the grantors, and that they also executed a mortgage to secure a usurious loan, does not without further circumstances connecting the transactions render these causes of action proper to he joined in the same complaint.</p>

<p>Party wall—Agreement to pay por assignable.</p> <p>The defendant made an agreement with plaintiff’s assignor to pay half of the value of a certain party wall when she should use the same. Subsequently said assignor assigned all his right, title and interest in the said agreement and party wall to the plaintiff. In a suit to recover half of the value of said wall, held, that the plaintiff was entitled to recover for the reason that the compensation being personal to the grantor, between whom and the defendant the agreement in reference to the party wall was made, there was an assignment of the same and of all interest in the agreement as to the party wall and in the party wall itself. Han't v. Lyon, 90 N. Y. 663, and other cases distinguished.</p>

<p>Fraudulent representation—PResumption oe innocence.</p> <p>In an action for damages for fraudulent representations concerning work to be performed under a contract between the plaintiffs and the defendant, Held, that where different inferences may be drawn from the same state of circumstances, it is the duty of the court to presume in favor of innocence rather than of intentional and guilty misconduct. Bryce v. Lorillwd Fire Ins. Go., 55 N. Y., 240, distinguished.</p>

<p>1. Replevin—Possession by assignee—In what capacity to be sued.</p> <p>Though an assignment has been made,’and the property sought to be recovered has passed into the possession of the assignee, it is proper to bring the action of replevin against him individually, as the property is in his possession.</p> <p>3. Practice—When verdict should be directed.</p> <p>The jury should be directed to bring in a verdict in accordance with the instructions of the court, when the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence.</p> <p>3. Sales—Complete acceptance necessary.</p> <p>The acceptance of goods must be complete and unconditional, or else-there is no sale. If anything remains to be done by either or both of the parties, the contract remains executory, and the title does not vest in the purchaser.</p>

<p>Bobbery—Festal Code, §§ 225, 226—Degree of force.</p> <p>Under sections 225, 226 of the Penal Code, when the property is taken-by force, the degree of force is immaterial in order to constitute the crime of robbery.</p>

<p>1. Evidence—Transcript of judgment recorded in a district court COMPETENT TO PROVE RECOVERY.</p> <p>_ Where it is necessary to prove the recovery of a judgment before a justice of the peace or in a district court of New York city, the transcript filed in the county clerk’s office is competent to prove the fact.</p> <p>2. Judgment creditor’s action—Form of judgment setting aside a TRANSFER AS FRAUDULENT.</p> <p>Where a judgment creditor brings his action simply to set aside a transfer as fraudulent, it is sufficient that the judgment declare the instruments fraudulent and void as against the plaintiff’s judgment. All that the plaintiff can claim in his action is the removal or annulment of the transfer as far as it obstructs the enforcement of his judgment, and beyond this he has no right or concern.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury directed by the justice presiding at the circuit.</p>

<p>1. Fraudulent representation—Evidence competent to rebut the CHARGE OP FRAUD.</p> <p>When the charge is that the defendants either did not believe or had no reason to believe to be true, certain representations which they made, it is-competent for them to show what information they had upon the subject, the character and means of observation of their informants, and also to show not only what their informants said on making their inspection, but also what they did upon the faith of the knowledge which they had. acquired.</p> <p>2. Evidence—Objection to admissibility of evidence must not be GENERAL.</p> <p>If the objection to the admission of certain evidence be general, there will be no error in its admission, provided it was admissible for any purpose.</p>

<p>Practice—Will—Construction of—What must appear.</p> <p>In an action to construe a will and codicil, it was neither alleged in the complaint nor found in the findings of the court that the codicil was-ever admitted to probate and the record contained no evidence of that fact, an infant being interested in the question to be adjudicated upon. Held, that proper proof must be before the court before any attempt at adjudication was made.</p>

<p>Contempt—Alimony—Payment of-—Proceedings to enforce-necessary allegation—Code Civil Pro.¡ §§ 1769, 1772, 1775, 2266 to 2282.</p> <p>In proceedings instituted for the purpose of punishing a person for the non-payment of alimony it must affirmatively appear whether he has any real or peí sonal property and that payment cannot be enforced by the sequestration of such property. Order to punish for contempt cannot be maintained without such proof.</p>

<p>Evidence—What competent under Code Civ. Pro., § 839.</p> <p>The plaintiff offered to return certain furniture purchased of the firm of which defendant was the surviving partner, and demanded the return of the price thereof on the ground that the furniture was not as represented. In a suit to recover the price of said furniture the plaintiff was allowed under objection by defendant, to testify that she relied upon representations made by the deceased partner to her in purchasing the said furniture. Held, error; that the plaintiff was not a competent witness under Code Civ. Pro., § 839.</p>

<p>Evidence—Action for money had and received.</p> <p>In an action for money had and received, where the defense, admitting the receipt of the money, consists of the repayment of the sum in satisfaction of claims held against the plaintiff, it is error to exclude any of the testimony going to prove all the circumstances of the repayment and the existence of the claim.</p>

<p>Referee—Duty of under order to receive evidence.</p> <p>Where the order appointing the referee to take proof of facts provides that either party shall he precluded from giving such evidence as may he competent as to any claims on account of any mortgages, and specifies a particular one, the referee will err in excluding competent evidence as to the particular one referred to in the order.</p>

<p>Appeal by defendants from special term judgment declaring a general assignment void.</p>

<p>1. Estoppel—Apparent ownership—Advances.</p> <p>Where shares of stock were placed in the hands of one for safe keeping with blank power of sale endorsed thereon: Held, that if the defendants who received them had advanced money on them relying on the apparent ownership of the party by whom they were delivered and without advice of the interest in them belonging to the plaintiffs they could have held them, as security for such advances.</p> <p>2. Title—Change oe—Presumption oe legality.</p> <p>The testimony on the plaintiff’s side of an action for the recovery of stock showed that the stock was at first held by them as a pledge, and further testimony was adduced showing that they held it subsequently as the absolute owners. How the title was changed and vested absolutely in them was not made to appear on the trial. Held, that as no question was made as to the manner in which the change of title took place it must be assumed to have been done legally.</p> <p>3. Practice—Request to go to jury, after submission of case on questions of law—Should be specific.</p> <p>There was no controversy in the case concerning the demand and refusal to deliver the shares nor as to their value, and when the evidence was closed the defendants moved to dismiss the complaint because they were bona fide holders of the stock without notice of the plaintiff’s interest. Upon the denial of this request an exception was taken and the plaintiffs thereupon requested the cour^to direct a verdict in their favor for the return of the stock which the court did and to which the defendants likewise excepted. When it was decided to direct a verdict for the plaintiffs the counsel for the defendants asked to go to the jury upon the facts of the case and that being refused excepted, and upon an appeal from the judgment insisted that the credibility of a certain witness should have been submitted to the jury. Held, that in case this had been desired, after both parties had concurred in requesting the court to dispose of the case upon what they deemed to be their legal rights, it should have been specially requested.</p>

<p>1 Rent—Liability of the general assignee of lessee.</p> <p>In an action for rent for premises owned by the plaintiff and leased to the parties who subsequently made a general assignment to the defendant. Meld That in the absence of an express agreement to pay rent the defendant became liable therefor by reason of his occupancy and use of the property as the general assignee of the lessee.</p> <p>2 Question of fact—Decision of jury can not be reviewed on ap PEAL</p> <p>Certain matters were set up as counter-claims by the defendant which the plaintiff insisted should not be allowed as such but should be deducted from the amount which she was preferred as a creditor. Held, That the question being properly one of fact, could not on their decision adversely to the defendant be the subject of review on appeal,</p>

<p>Evidence—As to tbansactions had with a pee son since deceased— Code Crv. Peo,, § 829.</p> <p>It is not the intention of Code Civ. Pro., § 829, to prevent a party to a suit from testifying to any extrinsic fact tending to contradict a witness who swears to transactions or communications had between such party and a deceased person, even where he cannot directly testify that no such conversation or transaction was ever had.</p>

<p>1. Execution—Imprppee. issuance of—Costs on motion to set aside.</p> <p>An execution issued in this action was given to a messenger to be delivered to the sheriff who received it on the following day. Before the execution had yet reached the sheriff, an order staying the plaintiff’s proceedings had been granted and served by being placed in the office of the plaintiff’s attorney in a conspicuous place during the hours allowed for that purpose, the office being open and no person therein to receive it, a motion having been made to set aside the execution. Meld, That the stay having been properly granted and served, the only question to be considered was whether under the circumstances costs of the motion should be imposed, and that this was properly determined in favor of the defendant,inasmuch as the regularity of the execution was sought to be maintained and seizure made under it.</p> <p>2. Same—Service of papers—When effectual.</p> <p>Meld, The fact that the attorney for the plaintiff did not find the papers thus served furnished no answer to the positive proof of their service.</p>

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

<p>Appeal from a judgment recovered on trial before the special term.</p>

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

Appeal by James Toole and others, next of kin, from an order denying a motion to revoke' and vacate letters of administration issued to James O’Reilly.

The following is the affidavit referred to in the opinion: “Horace W. Day, being duly sworn says, that he is a member of the firm of Sgobel & Day, and carries on business in the city of New York, and is the correspondent of Charles Hingston, the plaintiff in this action, who resides in the city of London, England.

<p>Appeal by the plaintiff from a judgment in her favor rendered upon the verdict of a jury at circuit and from an order denying the plaintiff’s motion for a new trial. The plaintiff by virtue of sundry assignments is the assignee of John Mulholland, who on the 9th of November, 1877, entered into a contract with the respondents for regulating and grading and setting curb and gutter stones, and flagging Sixty-sixth street from Eighth avenue to the Boulevard.</p> <p>The plaintiff claims in her complaint as a first cause of action that the engineer in charge of the work neglected to make proper surveys of the same and to give to her assignor the proper grades and levels; and that the said grades were changed, and that in consequence thereof her assignor was delayed in performing said work and that the same was not finally completed until December 4, 1884; that according to the prices named in the contract the value of said work is $13,808; and she alleges that the defendants at various dates have paid on account thereof the sum of $7,880.60, leaving a balance due by the defendant for the work executed as aforesaid of the sum of $5,927.89.</p> <p>As a second cause of action, it is alleged that the engineers appointed, and for the time being in charge of the work, were bound to mark the line of the grade to which the earth or rock upon the line of the same should be excavated : and that said engineers so carelessly and negligently conducted themselves that the defendant by and through one or more of them marked and designated erroneous hues of grade, and furnished erroneous levels; and that the plaintiff V'assignor was thereby put to great expense and suffered great loss and damage to at least the sum of $10,000.</p> <p>The answer of the defendant, after admitting the payment of $1,880.60, alleges that one Preston, as the assignee of W. B. Pitch, filed with the comptroller a written notice of claim against the plaintiff’s assignor, by which said Preston acquired a hen upon the moneys due to the plaintiff’s assignor in the sum of $2,029.10, with interest; that subsequently an action was begun to foreclose said lien, and that certain proceedings were had therein resulting in a settlement whereby said Preston agreed to receive the sum of $2,029.10, without interest; and that on the 9th of September, 1885, the comptroller paid the said sum to the said Preston as assignee. It is then averred that the plaintiff’s assignor assented to and requested the payment of said sum, and executed a release to the defendants for the amount thereof. The defendants further aver that the plaintiff’s assignor failed to complete his work within the time specified, to wit, within 300 days from the date of his contract, November 9th, 1811; and that by reason of his failure the defendants became liable to pay, and did pay under the provisions of the contract the sum of $3,642 for and on account of inspector’s wages, to wit, for a period of 1,214 days, for which said period over and above the time specified the said assignor of the plaintiff had failed to complete his said work.</p> <p>It appears that in 1880, the plaintiff’s assignor then being in default, the legislature passed an act providing that in all contracts for local improvements in the city of New York, thó time for completing the work thereunder in all cases where the time allowed by the contract for completing the same had not expired, should be extended sixty days ; and in all cases where the time had expired, the same should be extended for sixty days from the date of the passage of this act. (Laws of 1880, chapter 556.) Under this act the neglect of the plaintiff’s assignor to complete his work within the time specified in his contract was excused, and an extention of sixty days from the 10th of June, 1880, was thereby given to him; and it is from the 10th of August, 1880, that the computation of the inspectors wages charged to the plaintiff’s assignor has been made. The defendants also allege as a counter-claim, that in and by the surveyor’s certificate, the amount of work which had been don-1 by the plaintiff’s assignor it appeared that there had been 20,737' cubic yards of rock excavated, for which the plaintiff’s assignor was duly paid, whereas in point of fact the amount of rock actually excavated did not exceed 19,-737 cubic yards; and that the plaintiff’s assignor was paid on account thereof $333.30 in excess of the amount due for the work done under the contract.</p> <p>An additional answer was afterwards served by the defendants in which a further counter-claim was set up to the effect that the plaintiff’s assignor had neglected to remove the rock in said street to the sub-grade line, which is two feet below the established grade, to the aggregate amount of 1,000 cubic yards projecting above said sub-grade fine; and that to remove the same, and to make the street conform to the contract, would cost at least two dollars per yard, making an aggregate sum of $2,000, which said sum the defendant’s claimed to recover and set-off against the claim of the plaintiffs herein.</p>

<p>Appeal from order denying motion to vacate ex parte ■arder, etc.</p>

<p>1. Contract—Ratification—Effect of.</p> <p>This action was brought by the plaintiff corporation to recover damages for breach of contract. Held, that a contract entered into between a party and a representative of the corporation whose acts were subsequently ratified was a valid and binding one between the parties.</p> <p>2. Same—Third party for whose benefit contract was made may bring action for breach.</p> <p>Held, that a contract entered into for the benefit of the corporation, even without its knowledge, if subsequently adopted by it, was one for the breach of which it might recover damages by action.</p> <p>S. Tender—Objections to subject matter—When only available.</p> <p>Held, that when a tender of the transfer of certain rights contracted to be transferred was made and refused without reason assigned, it would not be allowed to'support such refusal by raising objections to the subject matter of the tender which might have been obviated if promptly raised.</p> <p>4. Contract—Execution of—Delivery is essential element of.</p> <p>Held, that delivery was one of the essential elements of the execution of a contract in writing.</p>

<p>Appeal from judgment in favor of defendant entered on dismissal of complaint.</p>

<p>1. Evidence—Motion to strike out hearsay—Error to refuse.</p> <p>Where a witness testified to certain facts, and it was subsequently brought out on cross-examination that he had no personal knowledge of the subject on which he gave his evidence, Meld, that a motion to strike out such evidence as hearsay was improperly refused.</p> <p>S Same—When such error must be disregarded.</p> <p>Held that the error thus committed must be disregarded, the evidence working no prejudice to the party against whom it was brought out, as the tacts were fully established by other and competent evidence.</p>

<p>1 Contract—When void for uncertainty</p> <p>The parties to this action in negotiating for a lease corresponded in effect as follows The plaintiff by letter to the defendant said that he would take premises belonging to him and therein described, at a yearly rent stated, plans,' etc., to be mutually agreed upon. This offer was accepted by letter by the defendant. This action was brought to enforce the performance of the agreement and the question arose whether the letter oon stituted a valid lease. Held, that it was a fundamental principle that in order to constitute a contract the minds of the parties must meet and agree-upon the terms of it, and that if any part remained to be settled the agreement was incomplete.</p> <p>2. Same—When specific performance cannot be decreed.</p> <p>Held, that stipulations contained in the correspondence were a material part of the agreement, and that the plaintiff not having waived his right, to the performance of such pait of the contract and that part being un certain, specific performance of the contract to lease could not be decreed.</p>

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

<p>Pleading—Complaint—When moke than one cause of action stated —Joinder of causes of action.</p> <p>The complaint alleged the incorporation of a certain railroad with authority to issue certain mortgage bonds, which were issued, the foreclosure of the mortgage and the appointment of receivers, who were authorized to issue certificates of indebtedness, which were declared to be a first lien on the railroad, etc., which certificates were issued. That Stanton, claiming to be the owner of certain of said certificates, sold and delivered to the plaintiff seven of the certificates. That at the time of the sale Stanton made false representation to the plaintiff as to the regularity and validity of the certificates, with the intent of defrauding plaintiff. The complaint, further alleged the sale of the road under a decree in the foreclosure suit, and that it was bought in at the instance and for the benefit of Stanton. That Stanton afterward sold it to one Swann, and out of the price he' agreed to pay and discharge all claims of every character held against said road by himself and certain others. That his claim was understood to embrace the seven bonds of plaintiff. That the defendant’s knowing that the said certificates were out of the hands of Stanton, wrongfully and by collusion with Stanton, to defraud the holder of said certificates, paid over to him certain bonds held to secure the payment of said certificates, without Stanton’s producing or being able to produce the same. The complaint then alleges the value of the bonds, and that by several orders of the court made in the action masters were appointed to take proof of the consideration and validity of the several receivers’ certificates which had been' issued, including those which had been held by Stanton. That Stanton, c lluding with said Swann, failed to appear and make such proof. That six of said certificates with the coupons thereon, remained wholly due and unpaid, and were still held and owned by the plaintiff. That Stanton had refused to pay the value of the certificates or any part thereof. That the payment of said bonds to said Stanton by said Swann and the railroad company was wholly void as against plaintiff, and that the receiving of the same by said Stanton was fraudulent as to the plaintiff, and that said Stanton held the same in trust for the plaintiff. Judgment was demanded first against each of said defendants, for the full amount of said six certificates and the coupons attached; second, that the defendant Stanton be adjudged to have received bonds from the railroad company in trust to satisfy the claims of the plaintiff, and that they belong to the plaintiff, and that he be adjudged to pay the same, or the value thereof, to the plaintiff. Held, on demurrer, that there was an improper joinder of causes of action. That there was one cause of action affecting all the defendants and another affecting Stanton alone. That the last cause of action is independent of the first. That the complaint also contains allegations setting up a complete cause of action against Stanton alone upon the ground of fraudulent representations.</p>

<p>Appeal by the mayor, etc., and others from an order confirming the report of commissioners estimating and determining the claims of the applicants for damages and compensation to be paid on account of the discontinuance of proceedings to acquire the title to lands for a military parade ground, and adjusting their compensation.</p>

<p>Appeal from order. vacating ex parte order, etc.</p>

Appeal by Louis Tobias and Morris Green from an order of the special term removing them from the trusteeship under the last will of Henry Harris, deceased.

<p>1. Criminal trial—Conviction nor bribery—Sentence—When stay ON EXECUTION OF JUDGMENT SHOULD BE GRANTED PENDING APPEAL— Code Criminal Procedure, § 537.</p> <p>Every person convicted of a felony or a misdemeanor has an absolute right to appeal. He needs no certificate or consent for that purpose but his appeal will not stay the execution of his sentence (except in case of a sentence of death) unless he obtains a certificate of a judge of the supreme court. Under section 537 of Code Criminal Procedure, a certificate that in his opinion, there is reasonable doubt whether the judgment should stand, is essential to a stay. This devolves the duty upon "the judge to whom the application for such certificate is made, to form an opinion whether the judgment should stand, and such judge cannot form such opinion without a careful examination of the whole case, involving the indictment, the evidence and the proceedings upon the trial and the charge of the trial court to the jury, who rendered the verdict that the defendant was guilty.</p> <p>2. Same—Evidence—Improper admission op.</p> <p>On the trial of defendant under an indictment charging him with the bribery of a certain alderman of the city of New York in connection with the granting to the Broadway Surface Railway the right to lay tracks and operate a street railway through Broadway in said city, the testimony of defendant taken before a railroad committee of the senate authorized and directed to investigate the means and methods used to obtain the consent of the local authorities to construct the same was admitted in evidence under objection and exception; Held, that, the trial court erred in the admission of such testimony.</p> <p>3. Same—Constitutional provision—A party cannot be compelled TO CRIMINATE HIMSELF.</p> <p>The rule at common law and before the adoption of the constitution of the United States or that of any of the states, was that a witness should not be obliged to give evidence which could be used against himself in any criminal trial. The same principiéis embodied in the constitution of the United States and in that of this state in these words: “ No person shall be compelled in any criminal case to be a witness against himself.” This protection applies to witnesses called to give testimony upon trials in civil as well as criminal actions.</p> <p>4. Same—-Penal Code, § 79.</p> <p>Section 79 of the Penal Code, which by its provisions gives protection to witnesses on the subject of bribery, includes witnesses giving testimony upon that subject before the legislature or a legislative committee. Under the construction of the earlier laws upon the subject of bribery, the witness could only be required to testify in relation to bribery before a magistrate, grand jury or court, and was only protected from its use against him in criminal proceedings. But under the existing law he can be compelled to give testimony before any court, hearing, proceeding or investigation of whatever kind or nature, and is guaranteed protection therefrom in all prosecutions or proceedings against him both civil and criminal.</p> <p>5. Same—Evidence of flight of co-defendant inadmissible.</p> <p>It was error in the trial court to admit proof of the fact of the absence of persons charged in the indictment with the defendant with the crime of bribery and their sojourn in Canada, as the excuse of their non-production as witnesses against the defendant by the prosecution.</p> <p>6. Same—Opinion of witness inadmissible—Rule.</p> <p>Miller, a witness called by the prosecution, was an alderman and voted at all times for the Broadway railroad, and was one of the railroad committee. He testified that he received $5,000 from De Lacy in bills of large denominations in a month or so after the Broadway resolution was passed bv the board of aldermen, and that De Lacy said when he gave him the bills, “ there is something to buy election tickets with; ” and that within a day or two afterwards he returned the identical money to De Lacy, and that there was no agreement or talk or understanding with De Lacy at any time that the money was given him on account of his vote for the resolution. The witness then, in answer to the question “tell us what did you think at the time he gave it to you for," was allowed to answer over objection and exception, “I supposed it was for the Broadway railroad.” Held* error; the rule is that, except in cases of value of property, of science and skill, etc., from experts, etc., the witness can only testify to facts, and not to his opinion, thoughts or suppositions.</p>

<p>1. Usury—Bill of sale with agreement to buy back—When cover FOR.</p> <p>Where the defendant advanced money to the firm of Brown & Hawkins, and took a bill of sale of a certain number of barrels of lime, etc,, at 75 cents per barrel, together with the shed in which the lime, etc., was kept, and at the same time Brown & Hawkins gave to defendant an agreement to pay all the expenses of insurance, storage, rent, cartage, labor and other outlay in the keeping, storing, insuring and transfer or shipping of said lime, etc., and to sell the same at anytime said defendant might request at a price named by him, and that if sold for one dollar a barrel defendant was to receive the whole amount, and Brown & Hawkins to pay out of their own pockets the expenses above mentioned. * *" Brown & Hawkins further agreed that if the said lime, etc., were not sold at the request of defendant prior to the expiration of three months from the date of the agreement, then at the end of three months Brown &■ Hawkins agreed to give the defendant one dollar per barrel therefor and pay all expenses. Held, that the transaction was merely a cover for usury, and the bill of sale could be set aside in a judgment creditor’s suit. That there was no bona fide sale oí merchandise nor any bona fide contract of repurchase.</p> <p>2. Same—Assignment for benefit of creditors—When void.</p> <p>Brown & Hawkins subsequently made an assignment to the said defendant Powers, wherein they preferred the said Powers and another, who had made advances under like conditions. The language of the preferences was that the assignee “ shall pay and discharge in full the indebtedness now due and to grow due of the said ” Hawkins to the defendant and other party. Provided, always, however, that the demands respective of said (naming the parties) " for damages arising upon executory contracts of sale with said first parties, or upon which they may be liable, shall not be preferred hereby to exceed the sum of $6000 each pf said parties. Yield, that said contracts were not valid; that the preferences of these fictitious demands of defendant were a fraud upon the general creditors of Brown & Hawkins; that the assignment was therefore void. ■</p> <p>3. Same—Practice—Uniting causes of action.</p> <p>In one action judgment creditors may attack any and every conveyance of property which the judgment debtors may have made with the intent to hinder, delay and defraud their creditors, and if they succeed in proving the general assignment was void because of fraud, they may also in that action attack any other conveyance or instrument which may have been executed by the fraudulent debtors, in order to withdraw their property from the claims of their creditors.</p> <p>4. Practice—Evidence—Objection—When to be taken.</p> <p>Objection having been made on demurrer to a complaint, good on its face, that there were not sufficient averments in the complaint of the facts constituting the alleged fraud, it being extrinsic to the assignment: Held, that the proper time to insist upon the objection was when evidence was offered to prove the facts constituting the fraud which had not been properly alleged in the complaint; that not having taken the objection then, the evidence was properly admitted.</p> <p>6. Same—Evidence—What admissible.</p> <p>The testimony of certain of the defendants taken in proceedings subsequent to the assignment, was properly admitted in evidence as against them individually. It would not be admissible if offered generally or against the other defendants, whether they were purchasers for value or not.</p>

<p>1. Will—Probate—Undue influence—How proved.</p> <p>To invalidate a will on the ground of undue influence there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it, and so controlled the actions of the testator, either by importunities which he could not resist, or by deception, fraud or other improper means, that the instrument is not really the will of the testator.</p> <p>2. Same—Vacating probate—What pact will not justify.</p> <p>The testatrix, a woman over eighty, made and executed her will within ten hours of her death. By said will she gave most of her property to her landlord, who had promised to see that she had a Christian burial The testatrix had no next of kin, but nephews and nieces. Meld, that, it was not sufficient cause to vacate the probate of said will, because the said legatee did not sufficiently inquire of testatrix concerning the extent and situation of her property, and of her relation to her next of kin, before he consented to be a beneficiary in the will or consented to aid her in the execution of her purposes. - 1</p>

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

<p>Appeal from a judgment on the dismissal of a complaint at the circuit.</p>

<p>Appeal ¡from judgment in favor of the plaintiff on the verdict of a jury.</p>

<p>Appeal from a judgment at the special term, declaring that John Garvey is now the legal owner of the premises described in the complaint, and that upon said John Garvey paying to the guardian of the property and estate of the said Joseph Garvey, the infant defendant, the sum of $3,500, mentioned in a certain agreement dated December 15, 1869, that said infant, Joseph Garvey, by Adolph L. Sanger, Esq., duly appointed special guardian for said in-, fant, convey the said premises to said John Garvey. It was further adjudged that the complaint be dismissed as to the defendant John Owens without costs, and that no costs should be allowed to any party in the action.</p> <p>The premises described in the judgment were conveyed to James Garvey, the father of the infant defendant, Joseph Garvey, by James B. Wilson, the special guardian of Mary Jane .Whittock and others, on the 20th of March, 1860. By-deed dated August 9, 1862, James Garvey conveyed said premises to Michael Morrison. On February 1, 1867, Michael Morrison reconveyed said premises to James Garvey. On May 1, 1866, while the apparent title to said premises was in Michael Morrison, John Garvey let and rented the said premises to James Garvey and James Garvey hired and took the same of said John Garvey, at a yearly rent of $600, payable in advance. On December 14, 1869, James Garvey, for the consideration of one dollar, bargained, released and sold to John Garvey the premises in question, and on the 15th day of December, 1869, an agreement was entered into between John Garvey of the first part, and James Garvey, of the second part, for the consideration of one dollar, in and by which said John Garvey released and conveyed the property in question to James. The agreement contained the following clause: “And it is hereby further agreed by and between the said parties that the party of the second part shall and will collect all rents from said described premises, and defray all necessary repairs, taxes and insurance that may accrue out of the said rents. Now this agreement witnesseth expressly, that said party of the second part shall and will grant, release and convey forever to Joseph James Garvey of Tompkins-ville, Richmond county, and the state of New York, a son of the aforesaid John Garvey, for the sum of one dollar, all the above described lot of land, with the building erected thereon, and also all sums of money that may have been .collected for rents or otherwise from the same, after deducting the sum of $3,500, without interest thereon, and also the expenses defrayed for all repairs, taxes and insurance from the day and year first above written until the time when the said Joseph James Garvey shall become at the age of twenty-one years, which will be on the 28th day of October in the year 1881.” James Garvey died on the 13th of October, 1877, and subsequently his widow Margaret married the defendant, John Owens, James Garvey left him surviving the defendant, Joseph Garvey, his only child and heir-at-law, and the defendant, Margaret Owens, his widow, as above stated. Joseph James Garvey, the son of John Garvey mentioned in the agreement of December .15, 1869, became of age on the 28th day of October, 1881, whereupon he brought this action to have it adjudged and decreed that the trust created by the agreement of December 15, 1869, was a valid trust for his benefit, -and that thereby he became seized in fee of said premises, and upon his arriving of age was entitled to .the possession of the said premises or to a conveyance thereof from the defendant, Joseph Garvey, an infant, free from all dower right of the defendant, Margaret Owens, and asking that a guardian may be appointed for said infant defendant to execute such conveyance. He further prayed that an account might be taken of the rents and profits of said premises, from the 15th of December, 1869, to the time of the death of said James Garvey, and that after deducting said taxes, insurance and repairs, and the sum of $3,500 without interest, and adding interest to said balances so found due to the plaintiff he might have judgment therefor against said Margaret Owens and John Owens, etc.</p> <p>On the 7th of January, 1886, Joseph James Garvey, the original plaintiff, died, and by an' order of tbis court, dated March 4, 1886, John Garvey, his father, as sole heir at law of the plaintiff, was substituted in his place and stead, and the suit was directed to be continued as heretofore.</p> <p>The learned justice before whom the cause was tried at special term, found as conclusions of law that said John Garvey is now the legal owner of said premises, and that upon said John Garvey paying to the guardian of the property and estate of the said Joseph Garvey, the infant defendant, the sum of $3,500, mentioned in said agreement, that said infant, Joseph Garvey, by Adolph L. Sanger, who is appointed the special guardian for said infant, convey the said premises to said John Garvey, and that the complaint be dismissed as to the defendant, John Owens.</p>

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

<p>1. Report op referee—What consideration due to, on appeal.</p> <p>Upon an appeal from a judgment entered upon the report of a referee rendered upon conflicting evidence. Held, That the result of the referee’s-judgment was entitled to great weight, he having had the witnesses before mm, and being much better able to judge as to the degree of credence which should be given to their testimony than an appellate court which saw only the record.</p> <p>2. Evidence—Consideration due to uncontradicted.</p> <p>That the testimony of a witness which was unimpeached and uncontradicted, was not on that account entitled to unconditional acceptance; by a court or jury, that it should be viewed in relation with the surrounding circumstances.</p> <p>3. Same—Competency op.</p> <p>Questions tending to shake the belief in the credibility of a witness are competent.</p> <p>4. Same—Question as to contents op letter—Competency op</p> <p>That a question as to whether a letter had been written, and not. calling for the contents thereof was competent.</p> <p>5. Same—Questions as to contents op letter—When incompetent.</p> <p>That a question as to the contents of a letter, notice for the production of which had not been given, was incompetent, but that the evidence given in reply being such as not to prejudice the opponent of the party asking such question, the error did not demand a reversal of the judgment.</p>

<p>1. New York city—Board or health—Liability op city por acts op.</p> <p>The plaintiffs were engaged in the construction of a certain sewer, under a contract, for the defendant. In the construction thereof, at two certain places, it was necessary to interrupt during the time the work was being done, the flow and discharge of the water of a certain brook. This interruption produced a pool of water which was unhealthy, and the board of health by an order and other proceedings compelled the plaintiffs to cease the obstruction of the flowage of said water, and thereby interrupted the work at those places during certain months in the summer. This action was brought to recover damages from the defendant by reason of the said delays. Meld, that the board of health was not subordinate to the defendant. That it exercised its own judgment without reference to the defendant, or any of its agents, officers or servants. That as the plaintiffs were interrupted in the construction of the sewer by the order and interference of the board of health the defendant was not responsible for t!ie consequences. Following New York and Brooklyn Sam) Mill Co. v. Brooklyn, 71 N. Y., 580.</p> <p>:2. Contract—Construction op.</p> <p>It was provided in the specifications forming a part of the contract that an work should he executed in a workmanlike manner and should be commenced and carried on at such points and in such order of precedence, and at such time and seasons as might from time to time be directed by the engineer. It also provided that “the prosecution of the work may be-suspended at such time and for such periods as the board of commissioners of the department of public parks may from time to time determine." Held, that the engineer acting under the authority of the department had ample authority to direct the suspension of the work. That as they did so-direct, the defendant was not liable.</p>

<p>Appeal from a decree of the surrogate removing a trustee under a will.</p>

<p>Appeal by claimants Keller and Waterman from order confirming report of referee in surplus money proceedings.</p>

<p>Appeal from a judgment at special term dismissing the complaint.</p>

<p>1. Sale—Purchase at sale on terms—Waiter of prior agreements.</p> <p>When a party bids at a sale at which the terms are announced it will be construed to be a waiver of a prior agreement as to particular terms not included in those announced</p> <p>3. Evidence—Leases—Merger in of all prior oral understandings BETWEEN THE PARTIES.</p> <p>When a person accepts a lease he will he prevented from disputing the same, on the ground that it does not contain prior agreements, by reason of the well settled rule that when a written agreement is entered into, the whole contract is embraced therein, all prior and contemporaneous negotiations and oral promises in relation to the subject matter are merged in the written agreement and the rights of the parties defined by its terms.</p>

<p>Appeal from a judgment recovered on the dismissal of the complaint at the circuit.</p>

<p>1. Statute of frauds—Parol contract—When sufficent.</p> <p>Where the sale is not one of chattels already in existence and capable of delivery, but such as are to be manufactured and delivered as the requirements may be, this is not a contract within the statute of frauds.</p> <p>2. Same—Performance within a year—When unnecessary.</p> <p>The statute only includes such agreements which per se, by the terms are not to be performed in a year and not those which may be performed within that period. If the agreement may consistently be entirely performed within a year, although it máy not be probable, displaced beyond the condemnation of the statute.</p>

<p>Appeal from a judgment dismissing the plaintiff’s complaint at the trial.</p>

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

<p>COBPORATICXN—DEBTS OB—PuBBEBEITCE.</p> <p>The plaintiffs herein supplied the material for the conduct of the business in "which the defendant company were engaged. Held, that the plaintiffs were entitled to be paid for the merchandise furnished by them before the capital used in the enterprise should be applied to the payment of any debts not arising out of the business.</p>

<p>1. Insurance—Eire—Parol contract—When a question for jury.</p> <p>In an action to recover ■ the amount of certain policies of insurance against fire, the payment of which was resisted, because of false statements in the policy, there was evidence tending to prove an oral contract made with the officers of defendant company, and that the policies issued to-the plaintiff’s assignor, were not in conformity with said contract and were received and keptfor about a month, in ignorance that they differed from said contract. This was contradicted by the defendant. Meld, that it was. a question for the jury whether the contract was made as claimed.</p> <p>2. Same—What constitutes acceptance of.</p> <p>Held, that the receiving said policies without careful examination, trusting to the belief that they had been made out according to the verbal contract and retaining them for a month, did not constitute an .acceptance of the policies in the form they were received, nor a waiver of the plaintiff’s-assignor’s right to refuse to accept them under said contract.</p> <p>3. Same—Practice—Porm of relief.</p> <p>Held, that if the jury should find there was such a contract as claimed by the plaintiff, he may either maintain the action, as one for the specific performance by the execution and delivery of the policies in proper form, or for damages for the breach of the contract to insure.</p>

<p>Appeal from decree of the surrogate settling the accounts, of the trustees of Samuel Willets, deceased.</p>

<p>Appeal from a judgment recovered on trial at the special term.</p>

<p>Appeal by plaintiff from judgment at special term dismissing complaint on the merits.</p>

Appeal by defendant from judgment entered on the verdict of a jury at circuit, from order denying a motion for a new trial, and from order denying a motion that the exceptions be heard in the first instance at general term.

<p>Appeal from a judgment recovered on the verdict of a jury</p>

<p>Assignee in bankruptcy—Mortgage foreclosure —What effectual TO FORECLOSE TITLE.</p> <p>In an action for ejectment the title to the premises subject of the suit was shown by the plaintiffs to have vested in an assignee in bankruptcy. It being material for the defendant to show that he had subsequently been divested of such title, the judgment roll in foreclosure proceedings in which he was made a defendant and in which it was claimed that any interest which he had in the land as assignee was introduced in evidence. In that, however, he was simply named as defendant in his individual capacity and was not officially designated. The complaint, however, alleged that he had, or claimed to have, some interest in or claim upon the mortgaged premises which was subsequent to that of the plaintiff under the mortgage. There was no evidence that he had any interest save as assignee, and that .was subsequent to that of the mortgagee. Held, that by such proceedings his title as assignee was effectually foreclosed.</p>

<p>Appeal from judgment of the court without jury.</p>

<p>Appeal from a judgment on the dismissal of the plaintiff’s complaint at the circuit.</p>

<p>Receiver—Must account to court.</p> <p>The receiver in an action, being an officer of the court and not of the parties litigant, is required to account to the court from which he received Ids appointment.</p>

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

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

<p>Appeal from an order of the Monroe special term denying defendant’s motion for a new trial upon the minutes.</p>

<p>Arrest in civil suit—Discharge—Code Civ. Pro., § 572.</p> <p>In order to entitle a person arrested in an action to he discharged before judgment on account of the plaintiff’s ■ unreasonable delay: Held, that the fact that plaintiff had unreasonably delayed, must he affirmatively established in support of the application before it will be allowed to prove successful</p>

<p>1. Riparian owners—Title extends to thread op stream.</p> <p>In an action 'brought by the riparian owners on one side of the Oenesee River to prevent those on the other from using more than a certain small amount of water. Held, That the title to the lands on the respective sides extended to the thread of the stream, and except as modified by some agreement or grant, the riparian owners are entitled to the use of the water as appurtenant to the land on the respective sides of the river.</p> <p>2. Same—Burden op proving agreement.</p> <p>The burden is with the plaintiffs to prove that the right to the use of the water has ceased to he connected with or appurtenant to, and had been severed from the premises on the east side of the river or that those on the west side, have acquired such rights of property on the east side as to deny to those on the latter the right to treat the use of the water as appurtenant to it.</p> <p>3. Same—Conveyance op land bordering on river—Reservation op WATER RIGHT—EPPECT OP RESERVATION—RIGHT TO DISPOSE OP RESERVATION.</p> <p>Where A owned a section of land on both and opposite sides of a river, and conveyed to B, the land on one side by deed excepting and reserving from the grant the right to use the water of the river. Held, that the right so excepted and reserved would not pass to the grantee, and A would have the right to divert to his own use on the side retained by him all the water of the stream. But his subsequent conveyance of the land so retained with its appurtenances hounded on the river would extend to its thread and no farther and would not include the right to the use of the water beyond that line. That he could yet transfer such reserved right to his first grantee or other riparian owner or repurchase the land first conveyed, and thus resume the use which the right reserved would give him.</p> <p>4. Same—Right to use op water op a stream not a mere easement OR APPURTENANCE.</p> <p>The right to the use of the water of a stream is not a mere easement or appurtenance but is annexed to the soil as part of the land and like it may be granted and reserved.</p> <p>5. Deeds—Estoppel—When recitals in, estop parties thereto.</p> <p>The recitals in a deed, to estop the parties to it from asserting to the contrary of them, must be of a particular thing or fact as in existence, and essential in character, as relating to the subject of the grant. The estoppel is not by them to he extended to matters collateral to the grant or things embraced in general statements, and not in specific and well defined terms.</p> <p>6 Same—Executors—When all must join in deed.</p> <p>By his will one Peck, empowered his three executors to convey lands and devised all lands not conveyed by them to his heirs. The third executor was living at the time a certain deed was made as well as the two who executed it, and it did not appear that it had his assent. Held, That this deed was ineffectual as a conveyance.</p>

<p>1. Contbact—What is a contbact and not a beceipt.</p> <p>In an action for breach of an alleged agreement, which was in writing, and as follows: *• November SO, 1882. M. D. Smith bought of James Halligan, Junior, two cars of potatoes at 54 cents for 62 pounds, to be loaded on track, at North Iowa or Iowa Center; paid cash $20.” (Signed.) “ James Halligan, Jr.” Held, that the writing was more than a receipt acknowledging the payment of money, that it was a receipt containing an agreement.</p> <p>2. Same—Evidence—When parol not admissible.</p> <p>It was error to admit evidence of conversations varying said agreement.</p> <p>3. Same—Construction of.</p> <p>There being no agreement in the writing as to who should furnish the cars, it was Halligan’s duty to furnish them as he could not perform his duty without them. That as no time was specified, the law implies that the delivery was to be within a reasonable time.</p>

<p>Judgment—Assignment—When not begabded as dischabge of.</p> <p>Where a judgment has been recovered in an action, the ownership of which has several times been transferred by assignment, it will not be regarded as functus officio, the evident intention of the parties to such transfers being to keep the judgment alive.</p>

<p>1. Fraud—Sale of property—When presumed fraudulent — What WILL REMOVE PRESUMPTION.</p> <p>One of these defendants is a judgment debtor and in proceedings supplementary to the execution founded upi n the judgment, the plaintiff was appointed receiver of the property of such defendant, and has brought this action to reach and have applied upon the judgment the alleged interest of that defendant in. the property of a firm of which it is charged that he is, as to his creditors a member. Held, that when a sale is not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things sold, the presumption arises that it is fraudulent and void as against the creditors of the vendor, and is conclusive evi dence of fraud unless it shall be made to appear that it was made in good faith and without such intent,’ but it such good faith and no intent to de fraud creditors appears the validity of the sale as to them does not require for its support any explanation or excuse for want of such delivery and continued change of possession.</p> <p>3. Same—Delivery of property—What will constitute.</p> <p>Held, that while mere words are not sufficient to produce a delivery and change of possession, the manner in which it may be done is dependent somewhat on the character and situation of the property sold.</p> <p>3. Same—Question of fact.</p> <p>Reid, that fraud is a question of fact to he determined from the circumstances of the case.</p> <p>4. Same—What circumstances will not require the conclusion that IT IS FRAUDULENT.</p> <p>Reid, that where a transaction was in form a sale of a partner’s share in the business of the firm his mere employment by the firm as a clerk, and his continuance as such merely in the business of which the vendee had the actual control and personal management did not require the conclusion that there had not been a delivery and an actual and continued, change of possession.</p> <p>5. Same—Referee’s report—Appeal from — Review of questions of fact.</p> <p>Reid, that upon an appeal entered upon the report of a referee the question was one of the weight of evidence rather than the entire want of it, if it appeared that the case contained all the evidence upon the point, it was. the office of the court to ascertain whether the determination of the referee was so against the weight of it as to require a new trial, but that this could not he done when the case failed to show that it contained all the evidence in that respect, and any evidence appeared tending in some degree to support the conclusions of fact found by the referee. That then the presumption arose that the evidence on the trial was sufficient for that purpose.</p> <p>6. Same—Evidence—Relevancy and competency of. '</p> <p>Reid, that upon the question presented as to whether the transfers made by the partner of his interest as above mentioned were fraudulent, and whether he still remained, a partner in the concern though nominally a clerk, evidence as to what compensation he received while occupying that, position was relevant and competent.</p>

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

<p>1. Evidence — Competency oe — Divebsion oe wateb — Action eob damages.</p> <p>In an action to recover damages alleged to have been sustained by the plaintiff by reason of the diversion by the defendant of water from a certain creek, the witnesses who¡ testified to the damage were practical millers, well acquainted with the business and familiar with the mill and stream in question. Held, that these facts permitted the conclusion that they knew something of the results of the business of milling, the corpus and rental value of such property and the impairment of the latter by the reduction to a certain specified extent of its productive power.</p> <p>2. Same—What “common knowledge.”</p> <p>' A certain witness was allowed to testify to the grinding capacity of a certain quantity of water. It appeared that this witness had experience which enabled him to state the quantity of grain ground by a specified power. But it also appeared he got the number of horse power from “ Leffels ” tables, and that these tables were ordinarily used by millwrights, and by all of them considered accurate. Held, that the united acquiescence of millwrights in the accuracy of said tables and of the result of computation founded upon them could be treated as the common knowledge of men of that profession, and their computations so made as competent evidence. That the evidence was properly admitted.</p> <p>3. Same—Weight oe expebt testimony.</p> <p>' The measure of intelligence of witnesses in respect to the matters on which they express their opinion is one of degree, and it is a question for the jury as to the weight they are entitled to if they by their avocation, experience and opportunity, come in the class of persons who may be deemed competent to have and express an opinion.</p> <p>4 Same.</p> <p>The water abstracted from said creek was pumped into a reservoir to supply the defendant’s railroad engines with water. Held, that the evidence of the defendant’s train dispatcher on the division of the road as to the number of trains running through the place in question, in giving which he referred to a hook, kept in his office, of entries of the movement of trains, was properly admitted.</p> <p>5 Same—Taken on former trial.</p> <p>There had been a previous action brought by the same plaintiff against the same defendant involving the same question except as to a different period of time. The evidence of a certain witness taken on said trial as to the quantity of water consumed in running trains was admitted. Held, no error.</p> <p>6. Same—Evidence of diversion bt others—Competent.</p> <p>H Id, That the defendant had the right to prove that water was taken from the creek above plaintiff's mill by other means than those produced by defendant.</p>

<p>Appeal from judgment entered on judgment of Erie circuit, and from order denying motion on case and exceptions for a new trial.</p> <p>The defendant is a corporation, having for its business the practice of medicine and surgery, and for that purpose has in its service physicians and surgeons. The complaint alleges that by the false representations of the defendant, by its servants, the plaintiff was induced to and did submit to an operation for the removal of a tumor, designated as a fibroid tumor, located in the walls of the uterus, with which they represented she was suffering, that in doing so she suffered intense pain and came near losing her reason and life, and as a consequence, and by reason of the subsequent neglect of the defendant, she was thereafter greatly afflicted with pain and became a confirmed invalid and substantially helpless, that, in fact, she had no tumor, and that the defendant’s servants, knowing that there was no tumor, made such representations and induced her to submit to the operation for the purpose of obtaining money from her, and alleges some other matters to the effect that the defendent neglected and refused to render to the plaintiff or to permit her to have necessary and proper treatment, which her condition required. The plaintiff had a verdict of $6,000. The defendant appeals.</p>

<p>1. Costs—Appeal ebom justice coubt—Who entitled to—When the BECOVEBY MOBE EAYOBABLE—CODE ClY. PBO. § 3070.</p> <p>Judgment was rendered in a justice’s court in the city of Buffalo in favor of the plaintiff for $200 and $5 28 costs. An appeal was taken to the superior court for a new trial stating that the judgment should have been for only $30 in favor of plaintiff. Plaintiff offered to reduce the judgment to $150. The answer was amended and a payment of $100 and counter-claims amounting to $380 set up and judgment demanded. A reply was served to the counter-claims. The referee found that the defendant was indebted to the plaintiff in the sum of $562, and that under the amended answer they established counter-claims amounting to $459.69 which left a balance due plaintiff of $102.31 with interest. Held, that the plaintiff was entitled to costs. That the amount he recovered exceeded the sum which he offered to accept in satisfaction of the judgment and also his recovery in the justice’s court.</p> <p>2 Counteb-claims—When extinguished—Code Crv. Pbo. §§ 2947 and 2948. sued 1</p> <p>The counter-claims were not extinguished by the judgment in the justice’s court under Code Civ. Pro. § 2947 for the reason that the amount of the counter-claim was $200 more than the judgment recovered before the justice Section 2948. subd. 1.</p> <p>3. Pbactice—Taxation of costs.</p> <p>The clerk had taxed the costs for plaintiff ex parte but on the return of the notice of retaxation had disallowed costs to plaintiff and taxed them in favor of defendant. The special term gave plaintiff costs, allowing the sum at which they were taxed by the clerk ex parte. Held,, error, that the defendant had a right to be heard before the taxing officer upon the items of the bill. That the correct practice would have been to set aside the taxation of the clerk and send the matter back to him with a direction to retax the plaintiff's costs on notice.</p>

<p>1. Certiorari—Writ of issued under Laws 1880, chap. 269, to review ASSESSMENT—EFFECT OF OMISSION TO MAKE AND DELIVER STATEMENT REQUIRED BY 1 R S., 414, § 2.</p> <p>A writ of certioi’ari was issued upon the petition of the relator, under and pursuant to Laws 1880, chap. 269, to review an assessment roll. Held, that the penalty prescribed by 1R. S., 414, § 2, for the omission to present the written statement therein directed to be made and delivered by an incorporated company to the assessors, .or one of them, of the town or ward in which such company was liable to be taxed, according to the provisions of the statute, being the only one, the courts had no power to impose any other</p> <p>3, Assessors—Right to hearing before, 1 R. S., 393, §§ 19, 20—Unaf-fected BY FAILURE TO MAKE AND DELIVER STATEMENT.</p> <p>It is provided by 1 R. S., 393, §§ 19,20, that all persons conceiving themselves aggrieved by an assessment, are entitled to a hearing before the board .of assessors. Held, that the relator, a corporation, was entitled to such a hearing, as well as any natural person, and that it could not be deprived thereof by its failure to comply with the statute provisions requiring the filing of a written ststement.</p> <p>3. Same—Power to correct errors in assessment upon complaint made.</p> <p>The assessors had power to relieve the relator upon hearing and examining complaints made by it, if injustice had been done, even though they did not have the aid of the statement required in making the original assessment, and the failure to make and deliver such statement to the assessors did not deprive the relator of the right to a hearing on grievance day, and a correction of the roll by the assessors, if just and proper, and the relator being entitled to correction on grievance day, had the right to have the same enforced through the writ for a review,</p> <p>4. Certiorari—Issuance op writ—To whom it should be issued.</p> <p>The rule that the common law writ of eertim'ari should issue to the persons or officers having the custody and control of the determination or papers sought to be reviewed, and which are required by the writ to be returned, is inapplicable to a writ issued under this statute; and it is sufficient that the writ should issue to the board of assessors, although the assessment roll had, according to the statute requirement, been filed with the town clerk.</p> <p>5. Same—Return when not conclusive—Power to take evidence.</p> <p>The common law rule that the return to a writ of certiomi is conclusive as to the facts required by the writ to be returned, is inapplicable to the return provided for under this statute, as by that statute the court is empowered and might take such evidence as might be necessary to their determination of the matter, and such evidence should form a part of the proceedings upon which the determination of the court should be made.</p> <p>6. Same—Hearing on return—Proper practice.</p> <p>It is not usual or customary practice to quash the writ upon a hearing based upon the return. Upon such a hearing the court should make a final order in the proceedings, either nullifying, confirming, or modifying the determination under review.</p>

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

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

Appeal by the executor from portions of the decree of the surrogate’s court of Seneca county making a judicial settlement of his accounts.

<p>Appeal from a judgment entered upon a decision of the Monroe equity term.</p>

<p>Appeal from a judgment entered upon the verdict of a. jury against the defendants.</p>

<p>1. Evidence—Competency—Code Civ. Pro., § 829.</p> <p>' On the trial of an action brought by an administratrix to recover on a note belonging to her intestate which was made by defendants, one of the defendants was asked, if at the time of making a certain assignment (in connection with which the note was given), and subsequently, the intestate was a creditor of said firm. Held, the question should have been excluded under Code Civ. Pro., § 827.</p> <p>3. Same—Practice—Objections and exceptions.</p> <p>Where a proper objection and exception is once taken to either the competency of a witness or to the character or admissibility of the evidence, the objection and exception need not be repeated to subsequent questions of the character covered by a former objection and exception.</p>

<p>Negligence—Effect of admissions on cross-examination.</p> <p>Where the only witness to prove negligence against the defendant is the' plaintiff himself, and he .on his cross-examination puts the blame of the accident upon himself, he cannot recover. The evidence of such a witness,, is like a chain, not stronger than its weakest link. If the plaintiff’s evidence does not justify a verdict in his favor, it is the duty of the court to. non-suit.</p>

<p>1. Gifts—Donatio causa mortis—Necessary elements.</p> <p>The gift must he made in view of the donor’s death and the donor must die, without having made a personal revocation of the same, of his' then existing ailment or peril. There must he a delivery to the donee and a complete transfer of possession of the thing and the title thereto. Delivery of the pass-book with intent to pass title is effectual to transfer the balance owing by the bank.</p> <p>2. Verdict—Direction of verdict—Undisputed evidence.</p> <p>If the evidence stands undisputed as to all material facts at issue there is no question for the consideration of the jury, and it is error to refuse to direct a verdict.</p>

<p>The plaintiff, an attorney and counselor at law, sues to Tecover for services performed and moneys expended at the request of the defendants in defending an action brought in the supreme court of the United States by the state of Alabama. The action is upon a quantum, meruit, and not upon any special agreement as to the rate of compensation. The complaint charges that the services were reasonably worth §1,500, and that the moneys expended amounted to thirty-two dollars. The bill of particulars furnished, recites that the services for which compensation is daimed were rendered in a suit, the object of which was to recover from the defendants the sum of §3,000,000 as damages sustained by the state of Alabama from acts of the defendants, ’who were officers and stockholders of the Alabama and Chattanooga Railroad Company. It also recites the fact that the state of Alabama was the endorser of the bonds of the railroad company, and had loaned to it State bonds for a large amount, and states the additional fact that the decision of the court was in favor of the defendants, whom the plaintiff there represented as counsel. An itemized account is also furnished giving the particulars of the services rendered, with the date and order of their performance. No fault is found with the bill in any of these respects. The objection urged is that the estimate value is not put-upon each particular item or service, and the object of the defendant’s motion was to require the plaintiff to furnish these different estimates of value going to make up the-aggregate sum claimed. The plaintiff insists that as his-charge of $1,500 “is made as a whole,” and consists of successive efforts to accomplish one object, that he cannot be-required to put a separate value upon each detail or item of the service. The court below coincided with this view,- and declined to require the plaintiff to give the desired-information, and from the order denying the motion the defendant appeals.</p>

<p>The plaintiff sued the defendant Cannon as the endorser of a promissory note made by one Meyer for $400. The note is dated September 4, 1883, and fell due December 7, 1883 On September 9, 1883, Edward C. Brooks, the holder of the note died, and the plaintiff qualified as his administratrix, October 6, 1883. The defendant pleads by way of set off or counter -claim, two notes made by the intestate, both dated July 24, 1883, each for $250, one falling due September 27, 1883, and the other falling due October 27, 1883 Upon the trial the above facts appeared. The defendant also ppoved that the intestate’s estate was insolvent, and that the maker and first endorser on the note sued upon by the plaintiff were insolvent, leaving the defendant remediless, unless his set-off or counter claim is allowed. The trial judge disallowed the alleged set-off or counter-claim, and directed judgment in favor of the plaintiff, for the whole amount claimed, from which judgment the defendant appeals</p>

<p>1. Contract—Agreement to advertise—Implied extension of the; ORIGINAL AGREEMENT.</p> <p>If the publisher continues to insert the advertisement after the time, he-cannot recover, unless the original agreement has been extended, or a new one made. The fact that the paper is taken by the person for whose benefit it is inserted, cannot be construed into a promise to pay, even after its-publication is brought to his knowledge. Following Lake v Patterson, 5-Hun, 558.</p> <p>2. Verdict contrary to law—Motion to set aside.</p> <p>If the verdict is contrary to law, the party aggrieved is entitled to nave-it set aside on a motion for a new trial on the minutes, although he has-taken no exceptions.</p>

<p>Practice on appeal erom judgment entered on verdict — Code Crv. Pro., §§ 767, 1300.</p> <p>Where the judgment has been rendered upon the verdict of a jury, the statute authorizes an appeal from the judgment upon questions of law only, and the defeated party is precluded from reviewing the facts unless he has made a motion for a new trial The order denying the application for a new trial must be in writing, and entered by the clerk, before an appeal will lie from it. This pre-requisite is not formal, hut jurisdictional.</p>

<p>Appeal by defendant from judgment entered on the "verdict, of a jury in favor of the plaintiff.</p>

<p>Landlord and tenant—Eviction by presence op vermin, etc.</p> <p>A tenant who hires premises takes them for better or worse. The landlord, in the absence of fraud, or express condition, is not responsible for the presence of rats, mice, bugs or roaches about his premises, and the. fact that the premises are infested by them, constitutes no defense to an. action for the rent.</p>

<p>Appeal from order made at special term, reversing taxation of costs by the clerk.</p>

<p>Motion to compel plaintiff to permit an inspection of the special contract sued upon.</p>

<p>Appeal from order striking out matter from defendant’s answer as irrevelant, and requiring him to make such answer more definite and certain, and from order .precluding the defendant from giving evidence of the defense he-was required to make more definite and certain on account of his failure so to do.</p> <p>The first cause of action set out in the complaint was for rent of certain premises at No. 80 West Broadway, in the city of New York, which, it alleged, the defendant, prior to September 1, 1882, entered into the occupany of and continued to occupy, hold, use and enjoy up to and including the month of March, 1885.</p> <p>The first paragraph of the defendant’s answer was as. follows:</p> <p>“First. He denies being indebted to the plaintiff in the sum of $240, claimed in the first paragraph or cause of action of the complaint. He admits having hired the-premises for six dollars per month, and having occupied the same for some time; but denies having hired and occupied the said premises for the'time in the complaint mentioned; and, except as admitted or denied, denies the other allegations of said first cause of action.”</p> <p>In the sixth paragraph of the answer, che defendant denied each and every other allegation in the complaint except those before admitted or denied in the answer. On November 23, the order was made upon motion after argument, by the special term of the city court of New York, striking out the words “he denies being indebted to the plaintiff in the sum of $240, claimed in the paragraph or cause of action in the complaint,” as irrelevant and redundant, and requiring the defendant to make his answer more-definite and certain, by stating the time he occupied the? premises described in the first cause of action contained in the complaint. The defendant failed to make his answer more definite and certain, and, on December 29, 1886, an order was entered precluding the defendant from giving-evidence upon the trial “of concerning, contradicting or tending to contradict ” the allegation of the complaint that the defendant occupied the premises therein described prior to September 1, 1882, to March 31, 1885.</p>

<p>Appeal from judgment entered on verdict directed in favor of the plaintiff at the trial term.</p>

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

<p>Appeal from judgment entered upon dismissal of complaint.</p>

<p>1. Conspiracy—Action for jury.</p> <p>Conspiracy, involving as it does the element of fraudulent combination in which the motives and aims of the actors are to be considered and their intention ascertained in the light of their acts, is an action eminently for a jury. When the illegal combination is established, anything done by one of the conspirators in furtherance of the common design is in law the act of all.</p> <p>'2. Same—Necessary parties.</p> <p>An agreement that the proceeds of the recovery be paid to another, does not make the person to whom the proceeds are to be paid a necessary party plaintiff.</p>

<p>1. Corporation—Stockholder—When can be sued.</p> <p>A stockholder cannot be sued until after judgment obtained against the corporation and return of execution unsatisfied.</p> <p>2. Same—Answer — Demurrer — When dependant entitled to judgment on demurrer.</p> <p>Where the answer alleges that before the return of execution unsatisfied, the defendant paid the full amount of her liability to another creditor whose right of action against the defendant had become complete and who had brought suit against her, Held, that she was absolved from further liability, and that, inasmuch as this action was brought before obtaining judgment against the corporation, there should be judgment for the defendant on the demurrer.</p>

Motion to set aside the verdict and for judgment for the defendant, on the ground that a formal judgment recovered by the plaintiff against the defendant in the eighth district court is a bar to a recovery in this action.

Motion to stay all further proceedings of Eaton & Lewis, as attorneys for defendants in these actions, and particularly* on alleged appeals taken by them to the general term from the judgments recovered herein by the plaintiffs, and tostrilce the notices of appeal from the files of the court.

<p>Motion by plaintiffs, as judgment creditors, to remove receiver appointed in supplementary proceedings.</p>

<p>Judgment—Partners—Effect of judgment against one of the partners—Code Civ. Pro., § 1278.</p> <p>A judgment against one of two joint debtors merges the debt, and no-action will lie thereafter against tile other, excepting only in case of a judgment by confession, which is especially provided for by section 1278-of the Code of Civil Procedure. It was not intended by the legislature to extend the privileges provided by section 1278 to judgments upon officers after suit brought.</p>

<p>Probate op will—When jury must try question of competency tomase A WILL—Of fraudulent and undue influence.</p> <p>In proceedings taken to have an alleged will admitted to probate, it ap peared that, previous to the making of said will, it had been the fixed and determined purpose of the deceased, as declared to his neighbors, friends and minister on numerous occasions "during the last twenty years of his life, that he should never make a will; that the laws of the state made a good enough will for him; that his children were all alike to him. It also appeared that during the last few years of decedent’s life false and damaging statements, accusations and stories had been made and told to him by several members of his family about his daughter, Mrs. Cole, by which he had become unjustly prejudiced against his said daughter. It was shown that lie was of the age of seventy-nine when he made the said will, of a feeble condition of body and mind, and so severely and dangerously sick that his family and attendants were apprehensive that he would not survive the night. The said will was contrary to the dictates of nature and grossly unjust, among other things giving Mrs. Cole only five dollars and his son Isaac, who had been instrumental in producing the false prejudice, two-thirds of his estate, which was worth over $100,000. The surrogate admitted the will to probate. On appeal from his decision: Held, that considering the previous fixed and determined purpose of the decedent never to make a will, and his condition at the time it was made, together with the nature of the will, there was reason to doubt the correctness of the surrogate’s decision upon the question of deception and undue influence. Also, held, that there should be a trial by a jury of the issues (1) whether the decedent was at the time of the execution of the instrument in question of sound and disposing mind and memory; and, (2), whether the same was procured to be executed by fraud, circumvention, undue influence and deceit practiced upon him by Isaac or the other proponents of the will, while there was a loss of natural affection by the decedent for his daughter, Mrs. Cole, occasioned by falsehood, etc,_, of proponents, perpetrated upon him for the purpose of unduly prejudicing him against her.</p>

<p>Appeal from judgment entered on decision of Monroe special term, dismissing the complaint on its merits.</p>

<p>1. Contract—Waiver of provision—Effect of.</p> <p>A contract was entered into by .the parties to this action, by the terms of which the plaintiff undertook, within a time therein limited, to remove a building then standing; and to erect a new one on the site of the former. Provision was made that if the work should not be finished at the time agreed upon, the plaintiff should pay a certain rate per diem as liquidated damages. Held, that if the provision as to the t)me in which the work should be completed was waived, the defendant was not entitled to recover damages by reason of the work not being finished within the time specified.</p> <p>3. Same—Waiver of provision—Renders its observance unnecessary.</p> <p>Held, that a provision that all orders for extra work should be in writing, having been waived by the acts and conduct of the parties, the presentation of such an order was not a prerequisite to recovery therefor.</p>

of the surrogate’s court of Orleans county, so far as it gives construction to a certain provision of the will in question.

<p>1 Husband and wife—Wife’s eaenings—When husband entitled to— Laws 1860 chap 90 § 2</p> <p>In an action brought against executors for services rendered in nursing and caring for their testator during his sickness, it appeared that the services were performed while the plaintiff was living with her husband doing the ordinary household labors of a wife having no separate estate or business, and that the testator, who was her father-in-law, was living with them Held, That Laws 1860, chapter 90, § 2, does not wholly abrogate the rule of the common law, entitling the husband to the services and earnings of the wife. That she may still allow Mm to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her own account, or of circumstances showing her intention to avail herself of the privilege conveyed by the statute, the husband’s common law right is unaffected.</p> <p>2. Same—What evidence sufficient to show intention to labob on own account.</p> <p>It appeared that tv o or three years prior to the sickness of the testator, plaintiff’s husband had told her that she might have whatever the testator would pay her for taking care of him, and that the testator was at times irritable, and that he and plaintiff did not get along well together. There was also evidence tending to show that the testator promised to pay the plaintiff and that on one occasion he commissioned the husband to say to her that if she would stay, he, the testator, would pay for it, and that the husband so stated to her in an interview that he had with her by direction of the testator. Held, That there were some circumstances indicating an intention on the part of the wife to separate her earnings from those of her husband, which taken in connection with the promise of the deceased to pay her for her labor, justified a finding that the plaintiff was-entitled to maintain the action.</p> <p>3. Same—Evidence—When husband not interested party within Code Civil Pro § 829.</p> <p>Held, that the claim of the plaintiff was not derived through her husband and consequently he was not an interested party and was not prohibited from testifying under Code Civil Pro., § 829.</p> <p>4 Same—Evidence — When physician competent under Code Civil Pro, § 834.</p> <p>The physician who attended the testator during the last year of his life, was asked whether he observed the testator during this time when he was not attending him as a physician. Held, that it was competent under Code Civil Pro , 834, for him to answer that he had, and to answer questions which only went to the observations made of the outward, visible facts that were seen by him on these occasions when he was not attending as a physician, and which were open and visible to the sight of any person.</p> <p>6. Same—Value op service op nurse—Physician may testify to ceneral rule</p> <p>The physician being asked as to the value of the plaintiff’s services as nurse and answered that he could not tell for the reason that he had not seen the deceased on consecutive days on many occasions, hut stated that as a general rule, where a nurse was required, it was worth from five dollars to ten dollars per week. Held, that the answer not being confined to this particular case, but a statement of a general rule, was competent.</p>

<p>Appeal from an order of the Erie special term, overruling demurrer to the complaint as frivolous, and ordering judgment for the plaintiff.</p>

Appeal from an order of the trial judge in an action tried at the Monroe circuit denying defendant’s motion for a new trial made on the minutes

<p>1. Chattel mortgage—What is a—Filing of—Constructive notice.</p> <p>A mortgage of the rights of a party of his interest in a lease of lands, together with all oil wells, machinery and structures thereon, and those to he placed thereon, if filed in the office of the proper town clerk, operates to give constructive notice of the lien created by the instrument.</p> <p>2. Same—What the lien extends to.</p> <p>Such mortgage is a lien upon wells subsequently put down by assignees of the lease.</p> <p>3. Same—Foreclosure of—What is not matter of defense.</p> <p>The fact that circumstances had occurred which rendered it within the power of the lessor, by the terms of the lease, to declare a forfeiture of the rights of the lessees thereunder, are of no avail to the assignees of the lease in the action brought to foreclose the mortgage.</p>

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

<p>Appeal from a judgment of the superior court of the city of Buffalo sustaining a demurrer to the indictment herein.</p>

<p>1, Practice—Refusal of special term to pass upon merits of a motion.</p> <p>Ordinarily, when the special term declines to pass upon the merits of a motion properly made there, the general term, on review, will reverse the order and remit the motion to the special term for further consideration.</p> <p>2. Same—Consideration on merits—When not ordered.</p> <p>Objection was made to the consideration of a motion (for a new trial on the ground of newly discovered evidence) on the merits, because more than one year had elapsed since the entry of the judgment and because the judgment had been affirmed on appeal to the general term. The court denied the motion without passing on the merits. The papers on which said motion was made were not before the general term on the review of said decision, and they were not advised of any of the circumstances or facts upon which the motion was founded. Held, that as there was no reason shown why the motion should have been considered on the merits, its consideration in that manner would not be ordered.</p>

<p>1. Criminal law—Grand larceny in the second decree—Evidence— ■-= Competency oe. '</p> <p>The defendant was convicted of the crime of grand larceny in the second degree. It appeared that he was engaged with one Silas W. Milliman in the grocery business as dealers in foreign and domestic fruits, etc.. in the city of Rochester, that the business was conducted in the name of S, Milliman, and that defendant had a power of attorney from Milliman, authorizing him to conduct the business in his name, to sign his name to all drafts, checks, bills of lading, letters, etc. It also appeared that in the city of Rochester there was a gentleman engaged in the same business by the name of Samuel Millman; that he was a man of wealth and reputation, doing a large business and .rated as being worth $50,000 It also appeared that defendant addressed a letter to a certain house in Philadelphia, having a printed heading of “ S. Milliman, dealers in foreign and domestic fruits, vegetables and oysters, 224Horth Clinton street, Rochester, N Y. Consignments solicited.” The letter was. “ Gentlemen—Please give me your prices for peaches, water melons, nutmeg melons and sweet potatoes Yours, etc., S. Milliman, per L.” He afterward ordered several lots of sweet potatoes from said firm for which he did not pay. Like letters were written to other dealers living at a distance from Rochester Held, that evidence of other and similar transactions, at or about the same time, was competent as bearing upon the question of the intent of the person charged with a criminal act. That the letters written to these dealers and their replies thereto when properly identified, and the fact as to whether the goods were procured, was competent as bearing upon the question of intent.</p> <p>2. Same—What letters not competent as evidence.</p> <p>Held, That letters written by dealers long after the transaction had taken place were not competent evidence for any purpose.</p>

Charles H. Howard and Henry I. Glowacki, partners doing; business at Batavia, ¡N. Y, in the firm name of Howard. & Co . made to the plaintiff a general assignment for the benefit of the creditors of the firm March 23, 1885. About the first of January, 1884, the defendant placed in the hands of Howard $2,852, to invest for him in a manner specified. The investment was not made.

<p>1. Venue—Change of place of trial—Motion for convenience of witnesses—When improperly granted.</p> <p>When upon a motion to change the place of trial for the convenience of witnesses the party moving for such change presented an affidavit that twenty-one persons therein named, whom he stated to be material witnesses for his defense, were residents of the county to which he moved that the trial should he transferred, and this was opposed on üie part of the plaintiff by the affidavits of nearly all those persons, staling that they knew nothing of and could not swear to any of the matters which in the defendant’s affidavit were stated as matters which he expected to prove by them. Held, that the order changing the place of trial was improperly granted.</p> <p>2. Objections—Not raised at special term—Cannot be heard for the first time on appeal.</p> <p>Held, that technical objections to the plaintiff’s affidavit not taken at the special term and of such a nature that they might have been obviated had attention been called to them, could not be heard for the first time upon appeal.</p>

<p>1. Promissory note—Holder before maturity presumed to be the OWNER.</p> <p>A party who holds a note before maturity is presumed to be the bona fide owner and holder of it.</p> <p>3 Same—Action on—May be shown as defense that plaintiff is not THE OWNER-</p> <p>In fan action brought on a note by the holder thereof it is a defense that the plaintiff is net the owner</p> <p>8 Same—Colorable title will support action.</p> <p>To"deieat such a defense it is sufficient that the title and the transfer to the plaintiff are colorable and such as bar another action against the defendant upon the subject of the action because in such case inquiry will not be made into the equities arising out of the apparent relation produced by the transfer when it is made by a person who has the title or right to make the transfer.</p> <p>4 Same—Who is not bona fide holder.</p> <p>A person merely taking the transfer of a note upon or on account of a precedent debt is not a bona fide holder.</p> <p>5 Same—Who is—Extension of time of payment of a debt is good CONSIDERATION FOR TRANSFER.</p> <p>The taking of a note with the agreement to extend the time of payment of an antecedent debt until the transferred note shall become due with a view to the payment of the debt out of the proceeds of the note constitutes a new consideration for the transfer and renders the person so taking it a bona fide holder.</p> <p>6 Jury—What is question for consideration of—When error to TAKE QUESTION FROM.</p> <p>Where the evidence of such a transfer is given by a party interested in the event of the action, the question of his credibility is for the jury and it is erroneous to rule as a matter of 1 aw that such agreement exists.</p>

<p>Answer—Goods sold and delivered—Action for balance alleged to be due—What is good defense.</p> <p>This action was brought to recover a balance claimed to be due for goods sold and delivered by the plaintiff tó these defendants. The answer admitted the sale and delivery of the goods and alleged that it was agreed at the time of the sale, and as an inducement that the defendants should buy the goods, that the balance, claimed in the complaint to be due, should remain in the hands of the defendants, not to be paid by them until the plaintiff should? satisfy a certain judgment which might affect the title to the goods, and that such judgment had not been satisfied by plaintiff. Held, that the answer set forth a good defense.</p>

<p>Appeal from an order of the Monroe special term, requiring the defendant to deliver to the plaintiff a bill of particulars.</p>

The action, is brought to recover upon a certificate of membership, issued by the defendant to Samuel E. Baker, by which upon the terms and conditions therein mentioned and referred to, it undertook to pay to the plaintiff a sum not exceeding $2,000 to be produced by assessment, etc., after the death of the member whose life was insured. The member died July 9, 1884. The defendant declined to pay. And the trial of this action resulted in a verdict of $1,500 for the plaintiff.

<p>1. Evidence—Secondary—When admissible.</p> <p>Before the copy of a letter is admissible as evidence upon objection being made, it must be shown that the original was lost or destroyed, that the opposite party has failed to produce it after notice served upon him, or other foundation laid for the introduction of it as secondary evidence.</p> <p>2. Same-Letters must be identified or proved.</p> <p>Letters before being read in evidence should be identified or proved.</p> <p>3. Same—Best evidence of contents of books,</p> <p>Where the contents of books are to be given in evidence the books are the best evidence.</p>

<p>Appeal by Robert B. Wickes, receiver from order of Monroe special term denying his motion for payment of surplus moneys.</p>

<p>Motion for judgment upon a verdict directed by the court at the Niagara circuit, subject to the opinion of the general term.</p>

<p>Appeal from a judgment entered on a verdict directed by the court at the Erie circuit, and from an order of the Erie special term denying the plaintiff’s motion for a new trial made on the ground of newly discovered evidence and surprise.</p>

<p>Reference—Attorney’s bill for services referable.</p> <p>There is no legal reason why a bill for services by an attorney should not be referred.</p>

<p>Attachment—Amount oh undertaking on—Code Crv. Pro., § 589.</p> <p>On an order of arrest a plaintiff is required to give an undertaking at least equal to one-tenth of the amount of bail required and not less than $250, and while this provision is not included in the section fixing the amount of security required on an attachment, yet it furnishes a proper rule by which to determine the amount of an undertaking on an attach • ment when the warrant has been levied and where the defendant seeks further security.</p>

<p>Lien—Of stable-keeper—Replevin—When notice of lien ineffectual—Laws 1872, chap. 498, as amended by Laws 1880, chap. 145.</p> <p>Where plaintiff, on June 23, 1886, began an action of replevin against defendant, a stable-keeper, to recover possession of a mare and harness, and the sheriff having replevied the same, left them temporarily in defendant’s stable, and thereupon on the next day defendant, with the intention of acquiring a lien upon the mare, served the notice specified in chap. 498, Laws 1872: Held, that service of such a notice after action commenced, though the mare was still in defendant’s stable, was a nullity, and no defense to the action.</p>

<p>Indecent assault—Action foe—Evidence of good chaeactee—Admissibility.</p> <p>In an action to recover damages for an alleged indecent assault by defendant upon plaintiff, whereby she became pregnant and gave birth to a child, evidence of the good reputation of the plaintiff, is not admissible, where her character has not been assailed generally, but only by proof of particular acts of misconduct.</p>

<p>1. Negligence—Municipal cobpobations—Brooklyn—Awnings—Liability of commissioner of city works—’Charter—Exemption clause —Laws 1881, chap. 457, sec. 1.</p> <p>In an action brought to recover damages for injuries sustained by the plaintiff by the falling of a wooden awning upon her, while walking along a certain street of the defendant city. The defendant Ropes being at that time commissioner of city works. The awning as constructed, was not a legally authorized structure and covered the entire sidewalk. Fkld, that under Laws 1881, chap. 457, sec. 1, subd. 1, which amended the exemption clause in the city charter of Brooklyn, the defendant Ropes, was not liable.</p> <p>2. Same—When city liable.</p> <p>It appeared that the duty of preventing the erection of the awning in question and of removing it when erected as a nuisance in a public street, was a divided duty, and devolved by the charter, not alone on a subordinate of the department of public works but also on the police force., Held, that therefore, there was no officer or officers of the city against whom a remedy for non-feasance could be had, and that if none of the city officers were liable the remedy was against the city upon its primary obligation to keep its streets in a safe condition. Following Fitzpatrick v. Stoeum et al., 89 N Y„ 858.</p> <p>3. Same—Awnings—When a nuisance.</p> <p>Such a structure made for private purposes if unauthorized is an encroachment upon the public street, and a nuisance especially if constructed so negligently as to be dangerous to persons passing under it.</p>

<p>1. Assessments—Legislature cannot validate one void for fraud.</p> <p>The legislature cannot validate an assessment void or voidable for fraud.</p> <p>2. Same—Laws 1874, chap. 588, does not cover such case.</p> <p>Chapter 588, Laws 1874, which amended the charter of the city of Brooklyn, covers cases only where lawful assessments had already been made or proceedings were in progress in regard to the same. Following People ex rel. Hays v. The City of Brooklyn (71 N. Y., 495); and distinguishing Matter of Van Antwerp (56 1ST. Y., 261), and Brown v. Ma/yor of N. T. (63 N. Y., 239).</p> <p>3 Same—When fraudulent.</p> <p>Where an assessment was fraudulently increased, it became thereby an unlawful assessment which could not be enforced according to law.</p> <p>4 Same—Fraud, when established.</p> <p>Fraud is not to be presumed, yet where the facts are such that they naturally and logically indicate its existence, and are not consistent with an innocent intent, fraud is established.</p> <p>5 Same—Statute of limitations—When action accrues—Code Crv. Pro., § 382, subd. 5.</p> <p>This action was brought in equity to obtain relief on the ground of fraud and prayed judgment declaring the assessment invalid to the extent of the alleged excessive charges, and reducing the same by deducting such amount and for the recovery of such amount with interest. Held, that the cause of action came within the six year limitation as prescribed by Code Civ. Pro., § 382, subd. 5, and that the cause of action did not accrue until the discovery of the facts constituting the fraud. Brundage’v. The Village of Portchester, 102 N. Y., 494; 2 N Y. State Rep., 398, and Parsons v. Gity of Rochester, 5 N. Y., State Rep., 467, distinguished.</p>

<p>Negligence—Street Railway.</p> <p>The plaintiff with a bundle of tools, was on one of defendant’s open street cars, and riding with his back to the driver; when he was near his place to alight, he arose from his seat, put one foot on the step running along the length of the car, and while, in the act of reaching over for his bundle, was struck by the hub of a large wagon standing on the street, and injured. The wagon lapped over the step and there was barely room for the car to pass. There was a conflict of evidence as to the speed of the car and whether a cautionary notice was given by the driver to his passengers. Held, that it was for the jury to decide whether plaintiff was guilty of contributory negligence or the defendant of negligence, and a nonsuit would have been unjustified.</p>

<p>1. Negligence—Railroad—Contributory negligence.</p> <p>The deceased was killed while attempting to cross the track of the defendant from the southerly side. A train had just passed on the southerly track leaving smoke which it was claimed obscured the view of the deceased of the train approaching on the northerly track, which killed the deceased. The morning was drizzly and the train did not ring its bell or sound its whistle. Held, That the deceased was not guilty of contributory negligence as a matter of law. BonlonY Long Island B. B. Co., 39 Hun, 674, distinguished.</p> <p>3. Same—What sufficient evidence to go to jury.</p> <p>It could be fairly argued to the jury that the smoke obscured the deceased’s vision, without his knowledge, and if so, and he looked in the direction of the approaching train before attempting to cross, he was not as a matter of law negligent.</p> <p>3. Same—Railroad guilty or—Duty as to rlagmart.</p> <p>The defendant was guilty of negligence; but they were not bound to keep a flagman at the crossing, or have a gate. Following McGrath v. The N. T. G. It. R. Go., 63 hi. Y„ 533. '</p>

<p>1. Libel—Defense—When plea of justification made out.</p> <p>The alleged libelous article published by defendant and alleged in the complaint, was in substance, that on the night in question the plaintiff had improper relations with a certain woman in his wife’s bedroom and that this information was derived from his wife’s stating it to an officer that same night at a certain place in a street named. The defense was justification. Held, that if defendant proved that plaintiff did have on that night improper relations with the woman in his own house, and his wife so stated to a person the next morning, but not the same night, then the plea of justification was made out.</p> <p>2. Same—What heed not be proved.</p> <p>That it was not necessary to prove that plaintiff’s wife made the statement on the night and at the place mentioned in the published article.</p> <p>8. Same—When justification proved.</p> <p>That justification would he established if by a fair preponderance of evidence the jury was satisfied that the plaintiff had improper relations with the said woman on that night in his wife’s bedroom. %</p> <p>4. Same—Giving name of author no excuse.</p> <p>The giving the name of the author is no excuse for the publication of a libel. Cases discussed.</p>

Plaintiff’s premises were sold for taxes on February 19, 1861, to D. H. Feeks, who received from the collector of taxes three certificates, reciting that fact, and providing that in case of redemption, “all sums paid shall be repaid to said purchaser or his assigns, provided this certificate shall be surrendered to the collector of taxes and assessments.” In 1862 or 1863 plaintiff purchased these certificates from Feeks, and received them with an assignment in blank from…

<p>Pleading—Sufficiency of complaint—Code Civ. Peo., §§ 481, 546.</p> <p>The plaintiff alleged in her complaint that while she was in the act of crossing Sackett street on the crosswalk, the driver of a one-horse streetcar so negligently and carelessly managed his team that the horse knocked her down and injured her. Held, that a motion to make the complaint more definite and certain was properly denied.</p>

<p>1. Contracts made on Sunday—Employment op undertaker not void— 1 R. S., 676, § 70.</p> <p>John, the brother of the parties, died on Sunday, and on that day the defendant promised and agreed with the plaintiff that if he would employ an undertaker and pay John’s funeral expenses, he, defendant, would repay the same to the plaintiff. Held, that the employment of an undertaker is a work of necessity, and therefore not void if made on Sunday. See. 1 R. S„ 676, § 70.</p> <p>2. Same—Statute op prauds—Consideration.</p> <p>The statute of frauds did not apply, because at the time the promise was made no debt had been incurred for which defendant promised to become responsible, none was incurred till the plaintiff employed the undertaker. The procurement of the services of the undertaker was ample consideration for the promise to repay.</p>

<p>Trial practice—Evidence—Irrelevant.</p> <p>Having tried a certain action on the theory that the question of intent in the execution of a certain deed was material to the issue, the plaintiff cannot complain that testimony which hore on the intent of the party was irrelevant.</p>

Appeal by the defendant from a judgment entered upon k verdict in favor of the plaintiff, given by direction of the court. The action is one of replevin brought to recover the possession of three printing presses. The defendant is the assignee for the benefit of the creditors of Frank Tousey.

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

<p>1. Practice—Undertaking—Party signing is not surety.</p> <p>Where an undertaking on which an order of arrest was granted was signed by one of the plaintiffs in the action and one surety. Held, that it was not executed by two sureties; that the plaintiff could not be surety.</p> <p>2. Same—Affidavit—Should contain evidence.</p> <p>An affidavit should contain the evidence from which the court can draw conclusions, and not the conclusions of the affiant drawn from evidence which is not furnished to the court.</p>

<p>1. Co-partnership—When proved.</p> <p>Where a referee found as matters of fact that this plaintiff and defendant agreed to become partners, each agreeing to contribute capital which they did, and thereupon they began to do business. Held, that there was no element wanting to establish a complete relation of partnership.</p> <p>3. Same—What constitutes one a partner.</p> <p>Where under the agreement of partnership the plaintiff had no immediate right to receive any part of the profits because of the inequality of contribution in capital, but he was chargeable with the losses. Held, tie had all the rights and obligations of a partner.</p> <p>3. Practice—Final judgment in equity suits—How entered—Code CivPro., §1328.</p> <p>In an action for equitable relief, the referee who tried the cause not having reported the form of a decree to be entered. Held, that the final judgment should be a decree of the court settled by the court and entered upon its direction. That Code Civil Pro., § 1338, does not conflict with this practice.</p>

<p>Appeal from a decree of the surrogate confirming probate of will.</p>

<p>Appeal from a judgment recovered at the special term.</p>

<p>Motion by the plaintiff for judgment on the report of a referee, and by the defendant to set it aside on exceptions taken to his decision.</p>

<p>Tbial fbactioe — Evidence ■—■ What mat be given by the plaintiff IN EEBDTTAL OF A DEFENSE BAISED BY THE DEFENDANT’S EVIDENCE.</p> <p>In an action for a balance alleged to be due upon a contract made between the plaintiffs and defendants for tin work upon a certain building. The defense was that the work was unskillfully and defectively performed The plaintiff put in proof tending to show that the plaintiffs had performed their agreement and then rested The defendant then put in evidence tending to show that the work had been defectively performed and the material unskillfully used. To answer this evidence the plaintiffs then went into proof of the fact that the work had been well done so far as they were capable of doing it, on account of the manner in which the carpenter work was done Meld, that this evidence was properly introduced when it was. That it was appropriate as rebutting evidence.</p>

<p>Surrogate’s court-^-Jurisdiction of—Probate of wills—Section 2476, Code Civil Procedure—Section 1861, Code Civil Procedure.</p> <p>Section. 2476 of Code Civil Procedure is a substantial equivalent for chap. 460, Laws 1837. The provisions of this section which require the production of a will in any case before the surrogate are complied with by the production of the will before the commissioner appointed by the surrogate to take proof in refe ence to its execution. The surrogate’s court is not deprived of any jurisdiction which it otherwise had by reason of section 1861 of the Code, but it simply confers jurisdiction upon courts to entertain an action to proem e a judgment establishing a will under certain circumstances. Distinguishing Younger v. Dvffie, 94 IT. Y., 533.</p>

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

<p>Appeal from judgment on verdict.</p>

Case agreed upon and submitted for the settlement of a question of legal liability on the part of the defendant for the payment of certain local assessments.

<p>Estoppel—Different causes of action—Election as to one—Effect of.</p> <p>Where a party has grounds upon which to bring different actions arising out of the same state of facts against different persons, and the maintenance of one necessitates an allegation of a fact inconsistent with the maintenance of another, the party is bound by his election and cannot proceed against the others, even though the judgment obtained fails tO' afford relief.</p>

<p>Divorce—Action for—Value of evidence of prostitutes and private DETECTIVES.</p> <p>Divorces should not he granted upon the evidence of prostitutes and private detectives, and the testimony should always he scrutinized with vigilant distrust.</p>

<p>1 Set-off—A claim against a member of a firm cannot be set-off against a debt to the firm.</p> <p>The debtor of a firm cannot set-off against his indebtedness to the firm a demand "which he may have against an individual member thereof.</p> <p>A Partnership—What representations by a member do not bind.</p> <p>Representations made by the member, against whom the claim exists, that he is a creditor of the firm and that he has been authorized to manage the business thereof, in no way alter the position of the parties.</p>

<p>1. Partnership—Application op payments—Order op.</p> <p>These plaintiffs upon February 3, 1885. opened an account with a co-partnership doing business under a firm name. On March 33, 1885, this defendant became a member of the co-partnership, one of the other partners at that time retiring The new co-partnership continued in the same business which the old had carried on and under the same firm name. The old co-partnership at the time at which the new one was formed was indebted to these plaintiffs. Between March 38th and April 15th of that year, the plaintiffs sold goods, wares and merchandise to the firm of which the defendant was a member, upon a credit of thirty days. Upon April 3d and 5th, the then manager of the business of the firm made payments to the plaintiffs, only stating at these times that he wished to make a payment on account. At the time of these payments there was nothing due on account of goods sold to the now firm, but a balance upon the old account exceeding in amount the payments made, and upon which the plaintiffs claim to have credited the payments. In July, 1885, the firm was dissolved by mutual agreement and the defendant bought out the business, asreeing to pay all the firm debts of the firm which was founded on March 33, 1885. This action was brought to recover from the defendant the amount unpaid upon goods sold to the firm subsequent to March 23, 1885. Held, that if there had been no change in the composition of the firm during the time that the goods were purchased the proper order of application of the payments would have been upon that part of the account which was due rather than upon that which was not due, and that under the circumstances proved the plaintiffs were justified in assuming that the new firm were the successors of the old, and that the business of the old firm was continued by them.</p> <p>% Application op payments—Proof necessary to change usual order.</p> <p>Held, That under the circumstances the defendant in order to claim that the credits should he applied to the new account was hound to show that the money which had been received by the plaintiffs was the property of the new firm and that it was therefore inequitable that it should be applied upon the debts of the old.</p>

<p>Practice—Advertising not a proceeding in passing assignees accounts-</p> <p>Advertising for the presentation of claims under an order of the court of common pleas, hy the assignee, is not any proceeding for the purpose of jiassing the assignee’s accounts.</p>

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

<p>Appeal from an order of reference.</p>

<p>Appeal from a judgment on verdict.</p>

<p>1. Trade mark—Medicine—Right to make and sell.</p> <p>Both parties to this action were engaged in the sale of a liquid medical preparation first made by one Salzburger, at Salsungen, and still manufactured in that town by a corporation, from which the plaintiff had acquired the exclusive right to sell in this country the compound as prepared by the corporation. The defendant learned the composition of this medicine when at work for the apothecary who then made it at Salsungen. Held, that defendant could lawfully manufacture it and offer it for sale as long as he did not endeavor to deceive purchasers as to its origin by simulating the distinguishing marks adopted by the plaintiff for the medicine made by the German coporation.</p> <p>H. Same—What protected as—When the court will intervene.</p> <p>The defendant had stamped the corporate name in an abbreviated form upon the capsule of his bottles, with a symbol and motto corresponding to those upon the bottles of the plaintiff. The resemblance was such as readily to mislead. Held, that the plaintiff was entitled to the intervention of the court by injunction, although he was not himself the manufacturer of the goods he desired to protect. That it was sufficient if he owned or controlled them</p> <p>8. Same—When not an infringement</p> <p>Held, that the defendant was at liberty to represent that the medicine he made and sold is the same in character and composition as that formerly prepared by Dr Salzburger, in Germany, if such was the fact.</p>

<p>Appeal from an order denying motion for interpleader.</p>

<p>Appeal from order overruling demurrer.</p>

<p>Reference—When should be opened—Terms of.</p>

<p>Amendment of complaint—Terms imposed.</p>

<p>Motion to dismiss appeal upon the ground that the proper printed papers have not been served.</p>

<p>Notice—Who entitled to.</p>

<p>Partnership—In real estate—Prooe necessary to establish.</p>

<p>Police officer—Improper dismissal of.</p>

<p>Mortgage foreclosure—Property situated out of the state—Conveyance of.</p>

<p>Appeal from order denying confirmation of referee’s report.</p>

<p>Action—Musical society—Authority of president to bring action.</p>