Volume 92 — New York Reports

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 12, 1882, which affirmed an order of Special Term appointing commissioners for the purpose of opening Ninety-second street, in the town of New Utrecht, Kings county, from Seventh avenue to the Shore road; also to appraise the damages for lands taken for such’ improvement, and to assess the amount, together with expenses, upon the property benefited. (Deported below, 28 Hun, 476.)</p> <p>In 1869 an act of the legislature constituted certain town officers of some of the towns in the county of Kings, contiguous to'the city of Brooklyn, commissioners to lay out a plan for streets and roads in th ose towns, respectively. (Chapter 670, Laws of 1869.) Exclusive power was conferred on these commissioners to lay out streets, roads and avenues in such towns conformable to plan of streets of said city, terminating at the city line, as nearly as might be practicable and judicious.</p> <p>In performance of the duties imposed on them the commissioners prepared a map, including among others the town of New Utrecht, and. laying out the whole area of that town in projected avenues and streets similar to those in Brooklyn city.</p> <p>In November," 1881, the supervisors, justices of the pe§tce and commissioners of highways of the town of New Utrecht claiming authority, under chapter 554, Laws of 1881, having met in that town, pursuant to public notice, certified to the necessity of opening said Ninety-second street, said certificate being signed by more than two-thirds of said officers, upon which certificate the board of supervisors of Kings county passed resolutions making certain alterations in the map of said street, as filed, and also the following:</p> <p>“ Sec. 3. , The County Court or the Supreme ■ Court at Special Term, in Kings county, upon the application of any freeholder of the town, or of the trustees of the school district within which said street is situated, upon five days’ notice of such application in one of the daily newspapers of the county, shall appoint three disinterested persons, residents and freeholders of said townj as opening commissioners, for the purpose of opening said street,” following which were resolutions as to the mode of proceedings, on the part of the commissioners so appointed, and as to the confirmation of their report.</p> <p>By further resolutions it was directed that the supervisors of the town borrow on its credit the amount of unpaid assessments, and give the bonds of the town therefor, with directions to apply all sums received in payment of the assessments, and”it was provided that “any deficiency, required to meet the principal and interest on said bonds, shall be made a tax on the real and personal estate of the town, and collected in and with the annual taxes.”</p> <p>Thereupon the petitioner above-named made application to the Supreme Court for the appointment of commissioners.</p> <p>The act of 1881 (Chap. 554) was violative of section 18 of article 3 of „ the Constitution, which prohibits the legislature from providing for “the laying out, opening, altering, working or discontinuing roads, highways or alleys except by general laws.” (State, ex rel. Richards, v. Hammer, 42 N. J. L. 438 ; State, ex rel. Anderson, v. Trenton, id. 486; People, ex rel. Clauson, v. Newburgh, etc., P. R. Co., 86 N. Y. 1; People v. O’Brien, 38 id. 194; People, ex rel. Burroughs, v. Brinkerhoff, 68 id. 265.) The commissioners could be appointed only on the application of owners of the lands through which the road is laid out. (1 Laws of 1872, chap. 315; 1 R. S. [7th ed.] „ 844, § 5.) The act of 1881 (Chap. 554) is void because it authorizes the county board to provide arbitrarily at its discretion for the estimation and award of the damages to be sustained, and for the assessment on property intended to be benefited thereby, and fixing assessment district therefor; the levying, collection and payment of the amount of such damages. (People, ex rel. Burroughs, v. Brinkerhoff, 68 N. Y. 264.)</p> <p>The act of 1881 (Chap. 554) is a general law, for it in terms applies to a specified class of things wherever situated. ( Walker v. Potter, 18 Ohio, 85; Wheeler v. Philadelphia, 77 Penn. St. 348, 351; Kilgore v. Magee, 85 id. 401; Matter of N. Y. El. R. R. Co., 70 id. 328; People v. N. & S. P. R. Co., 86 id. 1.) The enactment of the hoard of supervisors is warranted by the act on which it is based, and it does not infringe on the constitutional rights of the parties affected by the opening and construction of the street. (Mayor v. Livingston, 8 Wend. 85; Betts v. City of Williamsburgh, 15 Barb. 255; People v. Mayor of Brooklyn, 4 N. Y. 419; Matter of Sackett St., 74 id. 107; Cooley on Taxation, chap. 20.) The requirement of the enactment that notices shall be given to all parties affected by the acts of the commissioners, and that they shall have an’ opportunity to be heard, and to protect and enforce their rights, is. a sufficient compliance with the constitutional provision that no person shall be deprived.of his property without due process of law. (Stuart v. Palmer, 74 N. Y. 185; Matter of DePeyster, 80 id. 504.)</p>

Appeal by William J. Best, receiver of The Mechanics and Traders’ Savings Institution, from so much of an order of the General Term of the Supreme Court, in the third judicial department, as reversed a portion of order of Special Term, and directed William J. Best, the receiver of said institution, to pay in full certain judgments rendered against him in favor of William H. Sistare.

<p>One who employs a contractor to do a work, not in its nature a nuisance, but which becomes so by reason of the manner in which the contractor has performed it, if he accepts the work in that condition, becomes at once responsible for the nuisance.</p> <p>In May, 1857, one K. entered into a contract with defendant to regulate, grade, etc., a portion of one of its streets, the work to be completed on or before August 19, 1858. The contract required the work to be done under the supervision of a person appointed by the street commissioner, and to be approved of by that officer or the person so appointed, and if at any time the work should not progress according to the terms of the contract, said officer was authorized to complete the work at the expense of the contractor. K. commenced the work and dug a deep hole or trench in the street near plaintiff’s lots, adjoining the street; in 1859 he dug another hole, but did little else toward the performance of the contract, and in 1859 abandoned it. In 1873 the city employed another person who completed the work. In consequence of said excavations, surface water, which before that had been accustomed to flow in a natural channel, was diverted and thrown upon plaintiff’s premises, causing damage. This damage was done after the time for the performance of the contract had expired, and ceased when the work was Completed. In an action to recover said damage, held (Miller, Danforth and, Pinch, JJ., dissenting), that defendant was liable, as it permitted these excavations to remain when it had the power and right to take charge of and complete the work, and thus protect plaintiff’s property from injury.</p>

This action was originally brought by plaintiff against Patrick Butler, as surviving member of the firm of A. H. Hart & Co., to recover damages for the alleged conversion- of three machines used in the manufacture of flax. Butler having died during the pendency of the action, his administrator, the present defendant was substituted. Plaintiff claimed, as assignee of one Hayward, who claimed as mortgagee under a chattel mortgage, executed to him by one Crane.

Writ of error in behalf of the people to review the judgment of the General Term of the Third Department, September 5, 1882, reversing judgment of conviction of defendant of murder in the first degree. The prisoner was convicted at Oyer and Terminer for Warren county, March, 1881, for the murder of John B. Pair, at Glens Falls, JST. Y., December 27, 1880, and was tried and convicted October 10,1881, Hon. Charles O. Tappan, presiding. The case has been twice tried.

This action was brought to foreclose a mortgage given by defendant William Maekellar and his wife to the plaintiff's testator, on the 17th day of October, 1873, to secure the payment of $12,000, the amount of a loan made to Maekellar. It appeared that the whole amount of the loan was paid to Maekellar on the 18th day of October, 1873. The loan was made under an arrangement effected between Abner 0.

This action was brought by plaintiff, as administrator, with the will.annexed, of Harriet E. Christy, deceased, against defendants, as executors of the will of William M. Keteltas, who was the executor of the will of said Harriet E. Christy, to recover the amount of a debt alleged to have been due and owing to her estate at the time of her death from one Smith, and to have been lost through the neglect of the said executor to collect the same.

This action was brought upon a policy of insurance upon a dwelling-house, issued by the defendant, by its terms insuring Walter L. Thompson, assignee, for the benefit of creditors of Angelina Cooper, “ loss, if any, payable to ’’ plaintiffs, “ mortgagees as their interest may appear.” The material facts are stated in the opinion.

Cboss appeals from judgment of the General Term of the City Court of Brooklyn, entered upon an order made February 27,1882, which affirmed a judgment entered upon a decision of the court at Special Term. The nature of the action and the material facts are stated in the opinion. The trustees were creatures of the will, and compelled to follow exactly any explicit directions therein contained.

This action was brought to recover damages for alleged negligence causing the death of ¡Nicholas Martin, plaintiff’s intestate.

The substance of the complaint and of the demurrer is stated in the opinion. It is competent for partners to make contracts between themselves in reference to partnership matters.

<p>Murder.—Premeditation.—Competency of Juror.—Objection to Constitution of Court.</p> <p>The defendant, a convict at Sing Sing prison, took a knife, passed over to where the deceased, a fellow prisoner, stood, and stabbed him twice, "causing death. Two witnesses testified that no words passed between defendant and deceased, and that there was no provocation or assault by the latter. No motive for the homicide was disclosed by the people. Defendant testified that deceased before the day of the homicide had insulted him and threatened to kill him, that just before the homicide deceased had struck him and drawn a knife on him, and that he killed deceased in self-defense. Held, that the transaction was a deliberate and premeditated murder.</p> <p>A juror is competent who has read and talked about the case, and has formed an opinion of the guilt or innocence of the accused, but who declares that his opinion would not influence his verdict, and that he could render an impartial verdict according to the evidence.</p> <p>The point is taken in this court for the first time in the case, that tire court of Oyer and Terminer, by which the prisoner was tried, was not legally constituted, because the justices of the sessions who in part composed it, were not legally designated or elected. Held, that the point not having been raised on the trial, and there being no evidence or exception bearing upon it, it will be assumed that the court was properly constituted, and that the justices of the sessions who acted were duly designated according to law.</p>

• This action was brought originally by Robert N. Hand, the present plaintiff’s testator, to recover damages for entering upon lands under water in Port Jefferson bay or harbor and removing oysters therefrom. The material facts are stated in the opinion. The town of Brook-haven can only claim an exclusive fishery in the waters of Port Jefferson bay by virtue of its ownership of the soil under water.

<p>Appeal from order of the General Term of the Supreme Court, in the third judicial department, made May 2, 1882, which affirmed a decree of the surrogate of Montgomery county, directing as to the distribution of the proceeds of sale of the real estate of the decedent above named.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court had power to restore to plaintiff, from the estate of the testator of the present defendant, the amount of which he had been defrauded. (French’s Case, 4 Co. 31; Gr. & Rud. 405; Story’s Eq. Jur., § 266, note 2; Paulus Dig. L. 17, fr. 141; Ulpian Dig. id. 134, § 1; Gothofred, the Div. Reg. Jur. c. xxxiv, § 1; Paulus Dig. 17, fr. 15 ; v. Gothofred, the Div. Reg. Jur. xv; Paulus Dig. vi, 1, fr, 27, § 3 ; 7 Co. 19; Bracton, lib. iii, e. 3, § 5, fol. 102 a ; 1 Story’s Eq. Jur., § 553, note 2.) The surrogate’s decree was erroneous in disallowing to be paid to the plaintiff from the same fund, “any part of his costs recovered in his judgment against the executor.”, (Code of Civil Procedure, §§ 2756,2757.)</p> <p>Where a judgment has been rendered against an executor for a debt due from the decedent, the debt for which the judgment was rendered cannot be allowed, as against the real estate of the decedent, in proceedings before the surrogate to sell the same for the payment of debts at any greater sum than the amount recovered exclusive of costs. (Code of Civil Procedure, §§ 2756, 2757; 4 R. S. [Edm. ed.] 499, § 72; Burnham v. Harrison, 3 Redf. 345 ; Sanford v. Granger, 12 Barb. 392-403 ; Colson v. Brainard, 1 Redf. 328; Ferguson v. Broome, 1 Bradf. 10; Wood v. Byington, 2 Barb. Ch. 57 ; Dayton on Surrogates [2d ed.], 559, 560.) Peter G. Fox being executor of an estate, by paying to another, as such executor, moneys which he should have paid to the appellant, became personally responsible to him. Still as respects the said Fox and his individual estate, it is, only a simple contract debt, and the appellant can only take equally with the simple contract creditors of the said Fox. (Carow v. Mowatt, 2 Edw. Ch. 57; Charlton v. Low, 3 P. Wms. 330-331; People, ex rel. Adams, v. Westbrook, 61 How. Pr. 140.) The heirs and creditors of the decedent should have been made parties respondent to the appeal from the surrogate’s decree. (Code of Civil Procedure, § 2573; Patterson v. Hamilton, 26 Hun, 665 ; Brown v. Evans, 34 Barb. 594; People v. Com. Council of Troy, 82 N. Y. 575-6; People v. Clark, 70 id. 520 ; Kilmer v. Bradley, 80 id. 630.)</p>

Cross appeals by Bastus S. Bansom, receiver of the defendant, above-named, and by Samuel McMillen, purchaser, from portions of an order of the General Term of the Supreme Court, in the first judicial department, made October 13,1882, which reversed two orders of Special Term, one of which directed said McMillen, the purchaser of certain premises at a sale made by said receiver, to complete his purchase; the other denied a motion by said McMillan to be relieved from said…

Appeal by John P. O’Heill, receiver of the defendant, from an order of the General Term of the Supreme Court, in the third judicial department, made December 19, 1882,-which reversed an order of Special Term: “ In so far as said order rejects and disallows the claims of certain policy-holders in said order named and sustains the exceptions to that portion of the referee’s report as holds said claims to be invalid.” (Deported below, 28 Hun, 358.) The material facts are stated…

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made at the February term, 1883, which affirmed an order of Special Term which denied the application of the petitioner above named to vacate • an assessment for regulating and grading Eighty-fourth street in the city of Few York.</p> <p>The material facts are stated in the opinion.</p> <p>It was error to reject the evidence offered of the bids for filling on previous and subsequent contracts in the same vicinity. (23 Hun, 355 ; 85 N. Y. 646 ; Harrrison v. Glover, 72 id. 451, 454; Cliquot's Champagne, 3 Wall. 143; Lusk v. Druse, 4 Wend. 313.) The requirements of the ordinances of the common council were, by force of the several statutes authorizing them, as obligatory and mandatory as to the manner of contracting for public works as if the same wrere part of the statutes themselves. (Smith v. Mayor, etc., 10 N. Y. 508; Russ v. Mayor, etc., 10 N. Y. Leg. Obs.; People, ex rel. Dunsmore, v. Croton Bd., 6 Abb. Pr. 58; People, ex rel. Cummings, v. Croton Aq. Bd., 26 Barb. 240; In re Merriam, 84 N. Y. 601; Smith v. Mayor, etc., 10 id. 508.) The expression in the act of 1871 (Chap. 226) “in such manner as by him shall be deemed necessary and proper,” did not relieve the superintendent from the necessity of advertising and letting to the lowest bidder. (In re Weil, 83 N. Y. 543; In re Robbins, 82 id. 131.) It is not open to question that the price at which a° contract is let by a public officer, when he lets it at private letting instead of public letting, may be evidence of fraud. (Matter of Mead, 74 N. Y. 216; Matter of Raymond, Barrett, J.; Lawrence v. Mayor, opinion of Wheeler, J.)</p> <p>The failure of the commissioner of public works to advertise for bids and proposals for the work is no sufficient ground for invalidating the assessment. (Laws of 1861, chap. 308; Laws of 1870,. chap. 137, § 104; Greene v. Mayor, 60 N. Y. 303; People, ex rel. Ross, v. Brooklyn, 69 id. 605; Kingsley v. Brooklyn, 7 Abb. N. C. 42; affirmed, 78 N. Y. 200; Goodrich v. Russell, 42 id. 177-184.) Chapter 226, Laws of 1871, section 5, confers authority to impose the assessment for the expenditure actually made by the city in performing the work, whether incurred legally or otherwise. (Brown v. The Mayor, 63 N. Y. 240; In re Van Antwerp, 56 id. 261; Dillon on Mun. Corp., § 46; Hoyt v. Thompson, 19 N. Y. 218 ; Hasbrouck v. Milwaukee, 21 Wis. 217; Guilford v. Sup'rs of Chenango, 3 Kern. 143; Brewster v. Syracuse, 19 N. Y. 116; Howell v. Buffalo, 37 id. 267; 50 id. 502.) The evidence in relation to bids to regulate and grade other streets during the years 1872 and 1873 was properly excluded. (Gouge v. Roberts, 53 N. Y. 619; Jaeger v. Kelly, 52 id. 274; Story on Eq. Jur., §§ 244, 245; Davidson v. Little, 22 Penn. St. 245-251; Matter of Eightieth St., 31 How. 199; Kingsley v. Brooklyn, 7 Abb. N. C. 28-44.) The allegation of fraud to be sufficient should be clear and explicit. (Moak’s Van Santvoord’s Plead. 356 ; McMurray v. Thomas, 5 How. Pr. 14; Barber v. Morgan, 51 Barb. 116.) Mere inadequacy of price is not sufficient to prove fraud. (Jaeger v. Kelly, 52 N. Y. 274; Story on Eq. Jur., §§ 244, 245; Davidson v. Little, 22 Penn. St. 245-251; Matter of Eightieth St., 31 How. 199; Kingsley v. Brooklyn, 7 Abb. N. C. 42.) If the court finds that there was any such excess in the cost, or extravagance or carelessness in the matter of contracting, as to create a reasonable suspicion of bad faith, the only remedy to which the petitioners would be entitled would be a reduction in proportion to the amount to which the expense had been thus unlawfully or negligently increased. (Laws of 1870, chap. 383, § 27; In re Merriam, 84 N. Y. 596; In re Met. Gas-light Co., 85 id. 526; In re Pelton, id. 651.) The power to reduce and modify the amount according to the merits, as shown by the proof, is inherent in the court without the aid of the statute of 1870. (In re St. Joseph's Asylum, 69 N. Y. 353; In re Merriam, 84 id. 651.)</p>

The material facts are stated in the opinion. The work done in the year 1875 by day’s work was illegal and unauthorized, being in violation of the ninety-third section of the charter of 1873, and cannot be the foundation of a valid assessment. (In re Emigrant Sav.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, made September 6, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The nature of the action and-the material facts are stated in the opinion.</p> <p>The transactions between Head and Henright, subsequent to October 25, 1876, were clearly irrelevant and improper as evidence against Shea. (1 Wharton on Evidence, §§ 551, 566; 1 Greenleaf on Evidence, § 462; Bullis v. Montgomery, 50 N. Y. 352, 358, 359; Anderson v. R. & W. R. R. Co., 54 id. 340-343 ; Gandolfo v. Appleton, 40 id. 533, 539 ; Worrill v. Parmerlee, 1 id. 519, 521; Wilson v. Wilson, 4 Abb. Ct. App. Dec. 621; Happy v. Mosher, 48 H. Y. 313, 320.) The defendant, at the close of the testimony, was entitled to the affirmative in the summing up to the jury. (Houghton v. Townsend, 8 How. 441; McKyring v. Bull, 16 N. Y. 297; Millerd v. Thorn, 56 id. 402; Elwell v. Chamberlain, 31 id. 611; DeGraff v. Carmichael, 13 Hun, 129.)</p> <p>Plaintiff was properly allowed to close the case. (Huntington v. Conkey, 33 Barb. 218, 227, 228; Fry v. Bennett, 28 N. Y. 324, 329; Elwell v. Chamberlain, 31 id. 611, 620; DeGraff v. Carmichael, 13 Hun, 129; Millerd v. Thorn, 56 N. Y. 402; Murray v. N. Y. L. Ins. Co., 85 id. 236.)</p>

Appeal by the People, from a judgment of the General Term in the First Department, of February 2,1883, reversing a judgment of conviction of the defendant in the Court of General Sessions of New… Held: as matter of law, that the appellant, by his second marriage, was guilty of the crime of bigamy.

upon a case submitted under section 1279 of the Code of Civil Procedure. The facts stated were substantially these : In 1868, Helson K. Hopkins executed a deed to “ Cornelius Day and Hannah Day, his wife * * * their heirs and assigns,” of certain premises situate in the city of Buffalo. In August, 1877, Cornelius Day died leaving his wife surviving him, and after his death, up to .her own death, she had the possession of the, whole of said premises.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made April 10, 1882, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiffs’ complaint on trial.</p> <p>This action was brought to recover interest alleged to be due and unpaid upon an award to Louisiana St. John, plaintiffs’ testatrix, for damages to her land because of the widening of Broadway, which damages were awarded to her in proceedings instituted under the act (Chap. 890, Laws of 1869) authorizing that improvement.</p> <p>The award was made July 5, 1872. . The testatrix made a demand upon the comptroller for the same in December, 1872. In June, 1875, the comptroller paid the sum awarded, which was accepted by testatrix, who at the time gave a receipt at the foot of an account showing the amount awarded “ as in full payment of the above account.” She at the time served upon the comjhroller a paper stating that she demanded interest from January 4, 1873, and protested against his refusal to pay such interest, and accepted said award under protest, “ saving to herself all her rights in the premises.”</p> <p>Further facts appear in the opinion.'</p> <p>Interest ran on the award from the time of demand of payment thereof by the testatrix. (Spears v. Mayor, etc., 87 N. Y. 371.) Payment and acceptance of the award does not preclude plain tiffs’ right to recover the interest then due thereon, the interest being demanded at the time, and payment of the principal without interest being accepted under protest. (Jacot v. Emmet, 11 Paige, 142; Gillespie v. Mayor, etc., 3 Edw. Ch. 512; Tillotson v. Preston, 3 Johns. 229; Johnson v. Brannan, 5 id. 268; Williams v. Houghtaling, 3 Cow. 86 ; Consequa v. Fanning, 3 Johns. Ch. 587; So. Cent. R. R. Co. v. Town of Moravia, 61 Barb. 180-188; People v. County of New York, 5 Cow. 331; Fake v. Eddy's Ex'rs, 15 Wend. 76 ; Luddington v. Miller, 38 N. Y. Super. [6 J. & S.] 478; Bender v. Bender, 7 Barb. 561; Craft v. Morrill, 14 N. Y. 463; Tenth Nat. B'k v. Mayor, etc., 4 Hun, 429; S. C., 80 N. Y. 660.) The plaintiffs’ legal right to recover in this action being established, they are not estopped from recovery by the receipt given by the testatrix. (Geary v. Page, 9 Bosw. 290; Allen v. Roosevelt, 14 Wend. 100; Hawley v. Foote, 19 id. 516; Brooklyn B'k v. DeGraw, 23 id. 342 ; Tilton v. Alcott, 16 Barb. 598 ; Day v. Roth, 18 N. Y. 448; Hammond v. Christie, 5 Rob. 166; Ryan v. Ward, 48 N. Y. 204; Keeler v. Salisbury, 33 id. 153; 46 id. 310; People, ex rel. Kinney, v. Supervisors, 58 Barb. 139 ; Bunge v. Koop, 48 N. Y. 225.) Where there are more instruments, than one in existence between the same parties, eotemporaneous and relating to the same subject-matter, they must be construed together, treated as one writing, and the rights of the parties then determined upon the proper construction thereof. (Greenleaf on Evidence, § 283; Kittle & Chandler v. Massasoit Ins. Co., 56 Barb. 177; Meriden Britt. Co. v. Zirugson, 48 N. Y. 251; Jackson, ex dem. Watson, v. McKinney, 3 Wend. 233; Shaw v. Leavitt, 3 Sandf. Ch. 178 ; Mott v. Richtmyer, 57 N. Y. 49, 65; Connell v. Todd, 2 Denio, 133 ; Marsh v. Dodge, 66 N. Y. 533; Reynolds v. Commerce Ins. Co., 47 id. 605 ; N. Y. D. D. Co. v. Stillman, 30 id. 176; Ford v. Belmont, 7 Bob. 97, 508.)</p> <p>The payment of the principal sum awarded to the plaintiffs’ testatrix as principal has satisfied her entire cause of action growing out of the award, and is a bar to recovery of interest thereon. (Gillespie v. Mayor, 3 Edw. Ch. 512; Jacob v. Emmett, 11 Paige, 142; Johnston v. Brannan, 5 Johns. 267; Tillotson v. Preston, 3 id. 299; Consequa v. Fanning, 3 Johns. Ch. 587; Fake v. Eddy, 15 Wend. 76; Tenth Nat. B'k v. Mayor, 4 Hun, 429; S. C., 80 N. Y. 660; People v. County of New York, 5 Cow. 331; 1 Abbott’s Dig. title “ Application of Payments,” 220; Fleetwood v. Mayor, 2 Sandf. 481.) Under any circumstances the city could become liable to pay interest upon the award only as damages for the wn-ongful detention of the sum awarded to the plaintiffs and for negligent default in the duty of payment. (Ex parte Marlar, 1 Atk. 151; Watkins v. Morgan, 6 C. & P. 661; Cameron v. Smith, 2 B. & Ald. 305; Cook v. Fowler, E. L. R., 7 H. L. Cas. 27; Brewster v. Wakefield, 22 How. 118-127 ; Young v. Goodby, 15 Wall. 562-565; Burnhisel v. Firman, 22 id. 170-176; Nat. B'k Comm. v. Mech's' Nat. B'k, 4 Otto, 437; U. S. v. Sherman, 8 id. 565, 567; Van Rensselaer v. Jewett, 2 Comst. 135-140 ; Brainard v. Jones, 18 N. Y. 35-37; Hamilton v. Van Rensselaer, 43 id. 244-246, 7; Melick v. Knox, 44 id. 676-680; Eaton v. Poissonault, 67 Me. 540; Pearce v. Hennessy, 10 R. I. 223 ; Suffield Educ. Soc'y v. Loomis, 42 Conn. 570; Ludwick v. Huntzinger, 5 Watts & S. 51-59; McLane v. Abrams, 2 Nev. 99; v. Charlestown Branch R. R. Co., 11 Mete. 124-128.) It was a necessary part of the plaintiffs’ case to prove that payment had been unjustly refused and the money unjustly detained, in order to establish a right to interest. (U. S. v. Sherman, 8 Otto, 565; People v. Canal Comm'rs, 5 Denio, 405; 67 N. Y. 94; Spears v. Mayor, 87 id. 359 ; Astor v. Miller, 2 Paige, 68; Astor v. Hoyt, 5 Wend. 602; Countant v. Catlin, 2 Sandf. Ch. 485.)</p>

This action was originally brought by Selena H. Jewell, the devisee of the lessor, to recover rent alleged to be due from defendants, as assignees of the lessee under a lease of certain lots in the city of New York, executed in 1866 by Charles J. Jewell to David C. Sturges ; said devisee having died during the pendency of the action, her executors, the present plaintiffs, were substituted.

Mills, as administrator, with the will annexed, of David 1ST. Follett, deceased. (Reported below, 26 Hun, 594.) The material facts are stated in the opinion. The respondent, by acceptance of the moneys paid, ratified the acts of her general 1 guardian and estopped herself from controverting either the judgment or the settlement made thereunder.

This action was in the nature of a quo warranta to try the title of defendants to the office of police commissioners of the city of Syracuse.

This action was brought to obtain a construction of the will of Matilda Phillips, deceased. The substance of the will and the material facts appear in the opinion. The due execution of a power requires a substantial compliance with every condition which precedes or accompanies its exercise. After the death of her husband the power of sale given by the testatrix could not by any possibility be exercised.

The nature of the action and the material facts are stated in the opinion. To make the counterclaim available as a defense in this action, the defendants must show not only the existence of the demand for money had and received, which they alleged, but that such demand existed in favor of their testator • solely in his life-time and in them as Ms executors.

(Deported below, 28 Hun, 407.) This action was brought to recover damages for alleged negligence in causing the death of Eliza Houghkirk, plaintiff’s intestate. The deceased, at the time of the accident, was riding in a wagon with the plaintiff, her father, who lived on Van Bensselaer island in the Hudson river, which was connected with the main shore by a bridge, built partly by the Albany and Susquehanna Bailroad Company, whose road defendant leased and was operating.

(Reported below, 28 Hun, 331.) The facts stated in the case submitted are substantially set forth in the opinion. Defendant, after receiving the legacy due his wife, by not paying it over to her, became the depositary of the fund, and stands in the position of a banker. (Story on Agency, 206; Cowling v. Cowling, 26 Beav. 449; Stoll v. King, 8 Howl 298 ; U. S. v. Inhabitants, etc., Davis, 154; Giepp's Appeal, 15 Penn. St. 428; Parley v. County of Muskegan, 20 Am.

S. 83, § 9). (Reported below, 27 Hun, 54.) The executors refused to set aside any property of the estate because of an ante-nuptial agreement, the body of which is as follows: “ Whereas, a marriage is about to be had and solemnized between the said parties; and the party of the first part is desirous of malting provision for a fit and proper settlement to and for the use and benefit of the said Henrietta E. Tripp, his intended wife; now, therefore, the said party of the…

Wells, deceased. The will, after giving various legacies, contained these provisions. “All the rest and residue of my estate, both real and personal, I give, devise and bequeath to my beloved wife, Frances C. Wells, Henry M. McDonald and Willard Wells McDonald, to be equally divided between them; I do hereby authorize and direct my executors, hereinafter named, to sell the property in the village of Caledonia, and the farm north of said village, on such terms as they may…

, and remitted the proceedings to said surrogate, with directions to enter an order dismissing the proceedings. (Reported below, 26 Hun, 183.) The nature of the proceedings and the material facts are stated in the opinion. Extrinsic evidence is always competent to define or identify either the subject or the object of a testator’s bounty. (1 Jarman on Wills [5th Am. ed.], 429 ; Stubbs v. Sargon, 2 Keen, 255; O’Hara’s ed. of Wigram [2d Am. ed.], 128; see, also, Prop.

Flandrow, claiming to be a creditor of Tunis Van Brunt, deceased, requiring the payment of his claim by Edward Schell, special administrator, out of the assets of the estate. (Beported below, 28 Hun, 279.) ■ In March, 1867, during the life-time of said Van Brunt, the Marine Bank of Chicago obtained a judgment against him for $6,858.12. Van Brant died in 1867, leaving an instrument purporting to be his will, which appointed his widow his sole administratrix.

(Reported below, 27 Hun, 439.) This action was brought under the act chapter 86, Laws of 1813 (§ 184), to recover from defendants certain awards, made by the commissioners of estimate and assessment in the city of New York, which' awards were made to Henry W. T. Mali, now deceased, and were paid by the city to his heirs, the defendants herein. The material facts are stated in the opinion.

<p>The will of G. gave to two grandchildren, “the sum of $1,000 each, to be paid to them respectively as they arrive at the age of twenty-five years.” T° five children he gave $1,000 each, payable one legacy each year for T1TTQ wnnwn A f + Bio n A A AO O A A ff Al* AAulnlv» dAtv^AAA hny. , .. —. 4- « h n mn vvn five years after his decease. After certain devises and bequests, he'gave his residuary estate to defendant, his son, subject to the payment of his debts and the legacies. In an action by the administrator of the estate of one of said grandchildren, who died before reaching the age of twenty-five, brought after she would have reached that age, had she lived, to recover the legacy, held, that the postponement of the time of payment did not make the gift contingent; that the testator’s intent, as disclosed by the will, was simply to postpone payment for the benefit of the estate ; that the legacy vested upon the death of the testator, and that plaintiff was entitled to recover.</p>

(Mem. of decision below, 28 Hun, 430.) This action was brought upon a policy of insurance issued by defendant upon the life of Hugh P. Grattan, plaintiff’s intestate.

<p>In an action against a railroad company for alleged negligence, causing the death of plaintiff’s intestate, it appeared that the decedent was run over and killed in attempting to cross defendant’s tracks at a point where the owners of adjoining lands had a right of way, and where the public for thirty years had been in the habit of crossing. Held, that the acquiescence of defendant for so long a time in this public use amounted to a license or permission to all persons to cross at this point, and imposed a duty upon it as to persons so crossing to exercise reasonable care in the movement of its trains, so as to protect them from injury.</p> <p>Hownsell v. Smyth (97 Eng. 0. L. 731), Nicholson v. B. B. Go. (41 N. Y. 525), Sutton v. N. T. G. & H. B. B B. Go. (ti6 id. 243), distinguished.</p> <p>The train which caused the death was backing up without a bell being rung or other signal given, in charge of a brakeman, who was on a platform between two cars, where he could not see persons on the track or have notice to apply the brakes in case of danger. Persons were at all times crossing the tracks, several hundreds crossing daily. Held, that the evidence justified the submission of the question of defendant’s negligence to the jury.</p> <p>The intestate was a boy ten years old. The train which ran over him went past the crossing followed by a freight train. The bell on the freight train was ringing and the flagman on the crossing was flagging it, paying no attention to the other. The first train was switched on to another track and backed up on the track the boy attempted to cross. There was no direct proof as to what precautions he took before crossing the track. Held, that the question of contributory negligence was properly submitted to the jury ; that it was competent for them to infer that the boy seeing the first train pass supposed " it was going on, and his attention being attracted by the freight train, he did not observe that the first train had changed its direction and was backing up.</p> <p>In the case of a child of tender years, where the circumstances would justify an inference that he was misled or confused in respect to the actual situation, and that his conduct was not unreasonable in view of those circumstances, and his age, the question of contributory negligence is for the jury, although he may have omitted some precaution which in the case of an adult would be deemed conclusive evidence of negligence.</p> <p>It seems it cannot be held as matter of law, that, under the circumstances of this case, the ringing of the bell would fulfill the whole duty resting on defendant,</p>

This action was brought by plaintiffs as trustees under a trust deed executed to them by Emma Magnin D. Collogny, afterward Emma Strecker, for the settlement of their accounts as trustees, and for the direction of the court as to the disposition of the trust estate. The material facts are stated in the opinion.

In January, 1880, written charges were preferred against the relator, who was a patrolman, for conduct unbecoming an officer, with specifications for improperly demanding and receiving sums of money from houses of prostitution. The usual notice of examination was given to him. Such examination was had in May, 1880, the relator appearing by counsel, and on May 24 the relator was found guilty and removed. The writ of certiorari was issued in April, 1880. .

The questions submitted were as to the constitutionality of the act chapter 694, Laws of 1865, as amended by chapter 60, Laws of 1875, and if constitutional as to the amount, defendant, a Pennsylvania insurance company, is liable to pay to the superintendent of the insurance department of this State under said act upon premiums received by it in this State.

The facts stated in the case submitted are substantially as follows. Defendant, a domestic fire insurance company, in the year 188.1, had a capital stock of $3,000,000. On January 1 and July 1, of that year, it declared semi-annual dividends of five per cent each.

(Reported below, 26 Hun, 601.) The nature of the action and the material facts are stated in the opinion. The plaintiffs, having duly established on the trial title in themselves, were entitled to a verdict finding and asserting such title in fee, and to the possession of said premises, which were wrongfully withheld from them by the defendants.

This court will, upon appeal, review the “determination of the courts below even upon a discretionary order where it appears that the decision was based on the ground of a want of power to grant the application. (Tilton v. Beecher, 59 N. Y. 176; Beech v. Chamberlain, 3 Wend. 366; Russell v. Conn, 20 N. Y. 81; Tracy v. Altmeyer, 46 id. 598; Brown v. Brown, 58 id. 609; Allen v. Meyer, 73 id. 1; Matter of Duff, 41 How. 350; Eq. L. Ass.

The facts are sufficiently stated in the opinion. Plaintiff is entitled to the costs at General Term. (Sanders v. Townsend, 11 Abb. N. C. 217; Code of Civ.

This action was brought by the plaintiff as assignee upon certain bills for services rendered and materials furnished by different persons for the city of Albany, in making repairs on the “ City Building,” to fit it for use as a city hall, after the City Hall had been consumed by fire.

The nature of the action and the material facts are stated in ■the opinion. The defendant could not be made liable except by the provisions of the act of 1875 (Chap. 181), and by this the liability essential to sustain this action is not imposed upon the defendant.

<p>Appeal from judgment .of the General Term of the Supreme Court, in the first judicial department, entered upon an order made the first Monday of October, 1881, which affirmed a judgment entered upon a decision of the court on trial,at Special Term.</p> <p>This action was brought by plaintiffs as executors and trustees under the will of James Rowe, deceased, to obtain a construction of said will.</p> <p>The substance of the portions of the will in question and the material facts are stated in the opinion.</p> <p>The intention of the testator, if not inconsistent with the rules of law, must govern ; and this intention must be ascertained from the whole will taken together. (Hone v. Van Schaick, 3 Comst. 536,540, 541; Scott v. Guernsey, 48 N. Y. 106, 120-121; Quinn v. Harderbrook, 54 id. 83, 86.) If there are two probable interpretations of the will, that one is to be adopted which prefers the kin of the testator to strangers. (4 Kent’s Comm. [11th ed.J 535; Quinn v. Hardenbrook, 54 N. Y. 86 ; Van Kleek v. Dutch Church, 20 Wend. 457; Scott v. Guernsey, 48 N. Y. 106 ; 60 Barb. 163; Areson v. Areson, 3 Denio, 461; Kelso v. Lorillard, 85 N. Y. 182; Gazlay v. Cornwell, 2 Redf. 139 ; Valentine v. Wetherill, 31 Barb. 635.) The testator is presumed to have used words in the primary or ordinary sense, unless the contrary appears from the context. (Cromer v. Pinckney, 3 Barb. Ch. 475 ; Mowatt v. Carow, 7 Paige, 328; Lawrence v. Hebbard, 1 Bradf. 252; Hone v. Van Schaick, 3 N. Y. 538; Kiah v. Grenier, 56 id. 220; Palmer v. Horn, 84 id. 516; Clark v. Pickering, 16 N. H. 284; Wheeler v. Clutterbuck, 52 N. Y. 71.) JNo change of one word for another can ever be made, unless it becomes necessary to carry into effect the “ clearest intent ” of the testator, or the word used conflicts with his plainly expressed intention. (Redfield on Wills, 471, 491, 492, n.)</p> <p>By the absolute and unqualified direction to sell and convert into money all the testator’s real and personal property, and invest the proceeds for the uses and purposes therein specified, the real estate was converted into money. (Moncrief v. Ross, 50 N. Y. 431, 436, 437.) The intent of the testator is to be gathered from the words of the will itself. (Mann v. Mann, 14 Johns. 1; Arcularius v. Geisenheimer, 3 Bradf. 64; id. 114; Westcott v. Cody, 5 Johns. Ch. 334; Hone v. Van Schaick, 3 Barb. Ch. 506; Lovett v. Kingsland, 44 Barb. 560 ; Lovett v. Gillender, 35 N. Y. 617, 621; Cramer v. Pinckney, 3 Barb. Ch. 466, 475.)</p>

This action was brought to recover the amount of a tax alleged to be due from defendant, a domestic corporation, on January 1, 1880, under the act chapter 542, Laws of 1880. The material facts are stated in the opinion. The tax levied under the statute in question is a tax on the franchise in contradistinction to a tax on the property of the company. (Prov.

<p>The imposition by the board of supervisors of a county upon the county treasurer, during his term of office, of the duty of raising, keeping and disbursing large sums of money, in addition to the usual and ordinary duties of his office, for instance the raising and disbursing money, during a war, for bounty purposes, does not discharge the sureties upon his bond from all liability.</p> <p>Conceding no liability is imposed upon them on account of such increased duties, their obligations having reference to the usual and ordinary duties of the treasurer remain unaffected.</p> <p>Pybvs v. GHfib " (6 E. & B. 902), disapproved.</p> <p>In an action upon a county treasurer’s bond, the defendants are properly chargeable with interest upon an amount which it appears it was the duty of that officer to pay, but which he failed to pay over at the expiration of his term of office, to his successor.</p>

The complaint herein alleged in substance, that in the year 1875 the defendants were appointed trustees of the United States Hotel of Saratoga Springs, in the county of Saratoga, and that they thereafter delivered to the plaintiff a certificate stating that she was entitled to a beneficial interest in said hotel, its furniture and appurtenances, the legal title of which was then held in trust by James M. Marvin and John Tayler Hall, to a specified amount, and was entitled to…

(Reported below, 28 Hun, 373.) This action was brought to restrain defendant from the further exercise of its franchises and privileges on the ground of certain specified violations of the law under which it was organized. The defendant succeeded in the action. The value of the moneyed assets of the defendant after payment of its debts was found to be §100,000; aside from this no evidence was given as to the value of the franchises; an extra allowance of $1,000 was granted.

(¡Reported below, 27 Hun, 206.) This action was brought against defendant, as sheriff of the county of Madison, to recover damages for alleged false returns to two executions issued to him as such. The material facts are stated in the opinion. The fact that the clerk docketed the judgment against “Thomas Downs, Jr., impleaded,” did not affect the regularity of the judgment or executions.

Appeal by the relator- from an order of the General Term, First Department, ■ May, 1882, affirming an order made by Donohue, J., March 1, 1882, in New York city, refusing the relator’s discharge from arrest on a bench warrant, either absolutely or upon bail, dismissing the writ of habeas corpus, and also remanding the relator to the custody of Michael L. Mead, the respondent, under the original warrant.

Writ of Error to the Court of General Sessions of New York. The defendant was convicted in the court of General Sessions upon the trial of an indictment before Cowing, J., and a jury, May 27, 1881, charging him with commission of the offense of false pretenses, and was sentenced to the State prison for the term of eighteen months.

<p>Appeal from judgment of the General Term óf the Supreme Court, in the first judicial department, entered upon an order made June 10, 1882, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.</p> <p>This action was brought to recover a sum alleged to be due plaintiff as salary. In 1875 the plaintiff was employed as a regular clerk in the bureau of the commissioners of taxes in the finance department of the city of Hew York, at a salary of $1,200 a year; on the 23d of June, 1875, he received a notice from the comptroller informing him that said officer proposed removing him from his office; the alleged cause of removal being a diminution of business in the department; and he was advised that he would be allowed an opportunity to make any explanation to the comptroller on the 24th of. June, at an hour named. He appeared before the comptroller, ' and was then informed that his removal was on account of- the diminution of business, by reason of which his services were ho longer required. On the same day he was discharged, by-notice in writing announcing that his removal was "to take place on the 1st of July following.</p> <p>Plaintiff was a regular, not a temporary, clerk, and as such could only be removed for cause. (Laws of 1873, chap-. 3*35, §28; People, ex rel. Munday, v. Fire Commissioners, 72 N. Y. 445.)</p> <p>The plaintiff held his office for no fixed term, and was subject to removal at the pleasure of the appointing power, provided the conditions and method of removal prescribed by the legislature were observed. (Gillespie v. Mayor, 6 Daly, 286; People v. Comptroller, 20 Wend. 595.) The plaintiff might have been lawfully removed for the reason that his services were no longer required on account of the diminution of public business, without any prior notice of cause. (People, ex rel. Evans, v. Commissioners of Paries, 61 How. 130; Phillips v. Mayor, 88 N. Y. 246; Dunphy v. Mayor, 8 Hun, 479.)</p>

Court, in the second judicial department, entered upon an order made September 12, 1882, which affirmed an order of Special Term dismissing a writ of certiora/i'i brought to review the proceedings of the board of assessors of the city of Brooklyn and of the board of supervisors of the county of Kings in assessing in 1881 a tax for the year 1880 for city and county purposes upon the personal property of the relator. The material facts are stated in the opinion.

Reported below (27 Hun, 380). The material facts are stated in the opinion. All the provisions of section 6 of the act of 1848 (Chap. 319) are limited to the case of a person leaving a wife, child- or parent. (Squire’s Case, 12 Abb.

Delevan died in 1864, leaving a will, by which he gave his real estate, consisting of a farm at Eishkill, to his sistei’s, Jane axxd Catharine, “ during their respective lives,” and after their deaths he directed it to be sold by his executors, the proceeds to be invested and the income to be paid by them to his niece, Elizabeth Brinkei’hoff, daughter of his sister Betsey, “ during her life, and at her death the pi’incipal to be divided equally between any children she may…

The questions submitted were whether any, and if so, what amount of tax the defendant was liable to pay, for the current year ending November 1,1881, under the act chapter 542, Laws of 1880, as amended by chapter 361, Laws of 1881. The facts stated in the case submitted, so far as material, are set forth in the opinion.

Ai'peal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1882, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.

The nature of the action and the material facts are stated in the opinion. Defendant was not a manufacturing corporation within the provision of the act of 1880 (Chap. 542, § 8), exempting such corporations from its provisions. (Laws of 1843, chap. 170, § 1; Potter’s Dwarris on Statutes, 193.)

■ Appeal from an order of the General Term of the Supreme Court, in the second judicial department, made February 15, 1882, which sustained plaintiff’s exceptions and granted a new trial; a verdict having been rendered in favor of defendant by the direction of the court, on trial, and exceptions having been ordered to be heard at first instance at General Term. ■ (Reported below, 27 Hun, 74.) This action was brought to recover damages for alleged negligence in causing the…

The nature of the action and the material facts are stated in the opinion. This action cannot be maintained if Mrs. Holahan is the equitable owner of the premises, subject to the claim of Kerr’s estate, as thereby the deed (Drake to Kerr) in form is treated as a mortgage in effect, and Kerr, or his representatives, will not be permitted to purchase the prior mortgage and foreclose it, and thereby cut off the equity of redemption of the mortgagor, Mrs. Holahan.

(Mem. of decision below, 27 Hun, 603.) This action was in the nature of a creditor’s bill.

(Reported below, 27 Hun, 68.) The nature of the action and the material facts are stated in the opinion. Austin D. Moore, Jr., was at liberty to marry his former wife after the decree. (Van Voorhis v. Brintnall, 86 N. Y. 25.) The wife being the injured party, and the judgment being rendered in her favor, she could waive the benefit of it, except in so far as it prevented the delinquent husband from marrying any person other than herself. (Williamson v. Williamson, 1 Johns.

’ The nature of the action and the material facts are stated in the opinion. The paroi agreement, having been prior to, and inconsistent with, the terms of the writing, should have been excluded. (1 Greenleaf on Ev., §§ 275, 277; Hoare v. Graham, 3 Campb. 57; Mosely v. Hanford, 10 B. & C. 729; Woodbridge v. Spooner, 3 B. & A. 233; Free v. Hawkins, 8 Taunt. 92; Foster v. Jolly, 1 Cr.

<p>The provision of the Code of Civil Procedure (§ 3301, as amended by chap. 399, Laws of 1882), providing that the stipulation of the attorneys for parties to an action may take the place of a clerk’s certificate to a copy of a paper whereof a certified copy is required, was not intended to alter the effect of the provision (§ 1315) requiring a return to this court to be certified by the clerk of the court from which the appeal is taken, or of the rule of this court (Rule 1) making the same requirement.</p> <p>Returns to this court should be made by a responsible officer, under sanction of his official oath, and attorneys for parties cannot, by stipulation, make up a case for the court. ' ■</p>

This action was brought to compel a specific performance of a contract for the purchase of two pieces of real estate in the city of Hew York, the one being Ho. 545 Broadway, and 116 Mercer street, the other Ho. 23 West Thirty-fourth street. Ho question is made as to the validity or sufficiency of the contract of purchase.

Appeal by defendant from judgment of the General Term of Supreme Court, First Department affirming the judgment of the General Sessions of New York, convicting defendant of murder in the first degree. The facts of the case fully appear in the report of the decision at General Term (ante, p. 180), together with points of counsel and also the portion of the charge referred to in the opinion.

<p>Court of Appeals—Powers of.—Section 527, Code Crim. Pro.—Record on Appeal.</p> <p>The Court of Appeals is strictly an appellate court, and its general jurisdiction is confined to the correction of errors of law presented in the records brought before it. Unless it is otherwise specially provided, it will never review mere questions of fact arising on conflicting evidence, or the exercise of a discretion confided to the inferior courts.</p> <p>Section 527 of the Code of Criminal Procedure does not apply to the said court, and where the General Term has exercised its discretion under said section, in granting or refusing a new trial, its determination is not reviewable in the Court of Appeals.</p> <p>An appeal from a judgment of the General Term reversing a judgment of conviction, brings up for review only questions of law, and in ■ ascertaining whether the reversal was upon questions of law only, the record alone is to be consulted.</p> <p>The opinion of the General Term forms no part of the record, and to justify a consideration of the appeal to the Court of Appeals the order must show affirmatively, that the General Term has exercised its discretion, and has granted the new trial for errors of law only.</p>

The nature of the action and the material facts are stated in the opinion. In the absence of proof, on the face of the papers, that the judgment was reversed and a new trial granted upon questions of fact, the reversal will be presumed to have been on questions of law only.

(Reported below, 27 Hun, 175.) This action was brought by plaintiff, as supervisor' of the town of Liberty, in the county of Sullivan, to recover, in behalf of thé town, the county taxes assessed upon the property of and collected from the Hew York and Oswego Midland Railroad Company, during the years 1874 to 1878 inclusive, under the act chapter 296, Laws of 1874, to which the town claimed a right under said act.

This action was brought under section 1937 of the Code of Civil Procedure, after a judgment upon a joint undertaking to charge the defendant here, who was a defendant in the prior action, but who was not served with the summons. The defendant who-was served appealed from the judgment giving the undertaking required to stay proceedings. Pending the appeal this action was brought.

(Reported below, 28 Hun, 254.) The complaint in this action among other things alleged that the Eighth avenue, in the city of New York, is a public thoroughfare, and that it was and is the duty of the defendant to keep and maintain the streets and avenues of said city, including the said Eighth avenue, in good order and repair, and not to suffer ice or snow to be or remain in such a rough and uneven condition on the crosswalks thereof as to be unsafe and dangerous to foot…

Prior to the passage of the said act the petitioner’s property had been sold for the payment of said taxes, the purchase-money paid and leases had been executed to the purchaser. In October, 1882, the petitioner tendered to defendant the amount of the taxes with interest at the rate of six per cent from the date of the original confirmation by the board of supervisors, which he refused to accept.

This action was brought to recover back money paid by the plaintiff to the defendant for premiums on four policies of insurance on the life of the plaintiff, issued by the defendant ¡November 17, 1866. It is ^reported upon a former appeal in 85 N. T. 334.

The averments of the complaint, so far as material, are substantially stated in the opinion. The plaintiff is invested with both the power and the duty to protect its custody of all moneys in its treasury, or to be received therein, and to-test the. legality of all attempts to interfere therewith. (U. S. v. R. R. Co., 17 Wall. 322-329 ; People v. Ingersoll, 58 N. Y. 34; People v. Fields, id. 491; Webb v. The Mayor, 64 How. Pr. 10 ; People, ex rel.

<p>A party alleging the loss of a material paper, to make out a case authorizing secondary evidence of its contents, must show that he has in good faith exhausted, to a reasonable degree, all the sources of information and means of discovery whicli the nature of the case would naturally suggest and which were accessible to him.</p> <p>The person last known to have been in possession of the paper must be examined as a witness to prove the loss; if out of the State his deposition must be procured or some good excuse given for not doing so.</p> <p>The determination of the trial judge of the fact as to the loss cannot be reviewed here, unless the proof of loss was so clear and conclusive that it was error of law to find against it.</p> <p>Where the only witness called to prove the loss is the party claiming it, the trial court is not bound as matter of law to credit his statements, although they are not contradicted by any other witness.</p>

The facts stated were substantially these: Defendant is a corporation organized under the act providing “ for the incorporation of societies or clubs for certain lawful purposes ” (Chap. 267, Laws of 1875, as amended by chap. 58, Laws of 1876, and chap. 98, Laws of 1880).

These were motions to dismiss appeals. The opinion, which is given in full, shows the grounds of the motion. “The attorney for the respondent makes a motion to dismiss the appeal of Boese on the ground that he has not served ‘ a proper case or appeal-book.’ “ It appears that upon the appeal of Boese a case was prepared and settled by the consent and acquiescence of the parties, and filed in the clerk’s office, and that that ease was used at the General Term.

Dependant was in the occupation of certain premises under a lease which gave to the lessor the option to renew the lease for twenty-one years at an annual rental to be agreed upon by the parties or to be determined by arbitrators, or to take possession at the expiration of the term, paying in such, case to the lessee or assigns the value of the buildings on the premises.

Thebe were two appeals in this action, one from a judgment of General Term affirming a judgment of Special Term, the other from an order of General Term affirming an order granting an extra allowance of costs to the plaintiff. The appeal from the judgment was decided on the opinion below. As to the appeal from the order the court say: “ Order giving extra allowance of costs to the plaintiff, and this we think should be sustained.

There were two appeals in this action, one from judgment of the General Term, sustaining a demurrer to the second and third counts of the complaint. The other from an order of the same court, reversing a judgment in favor of plaintiff, and granting a new trial. The first appeal was affirmed on the opinion of Rumsey, J., at General Term, which is reported in 26 Hun, 326.