Volume 93 — New York Reports

<p>A public officer, whose salary is fixed, cannot he deprived thereof without sufficient cause. While sickness may, in some cases, be a good ground for his removal, yet where it appears that his absence on account thereof has been permitted, his right to the salary is not affected thereby until some action is taken by the proper authorities.</p> <p>The exercise of its discretion by a hoard of public officers in determining when and to what extent persons in their employ may he excused because of sickness or temporary disability, will not be overruled unless it appears clearly that it has been abused.</p> <p>Plaintiff was a clerk in defendant’s employ, and as such rendered services until November, 1870, when he made application for leave of absence on account of disease of the eyes. This was filed with defendant, with an indorsement thereon by the chairman of defendant's finance committee to the effect that it was granted; no limit was stated. Plaintiff reported from time to time, and, in May, 1871, under advice of his physician, he went abroad, defendant’s president having given him permission so to do. Plaintiff’s salary for May and June were audited, but not paid. In September, 1871, the finance committee, by resolution, directed plaintiff’s removal, the same to take effect May 1, 1871. In an action to recover salary from that date up to the time of removal, held, that plaintiff was entitled thereto; that the evidence showed defendant had knowledge of and ratified the leave of absence, even if originally it was insufficient, and recognized plaintiff as still in its employ and entitled to pay, and so was estopped from claiming that he was not ;</p> <p>that as the leave granted could have been withdrawn at any time, until this was done or plaintiff removed he was entitled to his salary; that therefore the resolution, so far as it purported to date back the removal, was invalid.</p> <p>A fact once admitted by a corporation, through its officer, properly acting within the scope of his authority, is evidence against it, and the doctrine of estoppel applies thereto.</p> <p>People, ex rel. Burnett, v. Jackson (85 N. Y. 541), distinguished.</p>

This action was brought to recover damages for injuries received by plaintiff from falling down a stair-way in a flat or apartment house, a portion of the second story of which was rented of defendant by plaintiff’s husband. The material facts are stated in the opinion.

This action was .brought to recover damages for injuries received by plaintiff, occasioned by a fall upon the sidewalk in front of premises, in the city of Brooklyn, owned by plaintiff. The case is reported on a former appeal in 87 N. Y. 84. The premises are situated at the north-west corner of Waverly and Gates avenues in the city of Brooklyn.

<p>The act of 1860 (Chap. 90, Laws of 1860), authorizing a married woman to carry on business and to perform labor “on her sole and separate account,” did not absolve her from the duty to render to her husband such services in Ms household as are commonly expected of a married woman in her station in life. Whatever services are thus rendered are not on “ her sole and separate account,” and in rendering them she still bears to Mm the common-law relation.</p> <p>A wife, therefore, cannot make a contract with her husband, valid as against his creditors, for compensation for services rendered by her in the discharge of the duty she thus owes to him, or which he owes to another, an inmate of his family, where she receives no payment from the person for whom the services are rendered, and brings no money or property by her services to her husband.</p> <p>In an action by a j udgment creditor to set aside a conveyance by B., the judgment debtor, through a third person, to Ms wife, it appeared that prior to 1869 the mother of B. had conveyed to Mm certain lands upon Ms agreement to support her during life. In that year it was agreed between B. and Ms wife that she should care for and attend upon the mother, who had become helpless through paralysis, and that he should pay her therefor $5 per week. It was then supposed the mother would live but a short time. She did live, however, over eight years, and was cared for, according to the agreement, by Mrs. B. The referee found the contract to be fair, just and honest, and the compensation no more than reasonable for the services. In December, 1877, the conveyances in question were executed, the only consideration being the amount due under said agreement, the indebtedness upon which plaintiff's judgment was recovered was then incurred. Held, that the agreement was invalid and the conveyances void as against creditors.</p> <p>It was claimed that as the statute (3 R. S. 137, § 4) declares that the question of fraudulent intent in such cases “ shall be deemed to be a question of fact and not of law,” and as the referee found the transaction fair and honest there was no fraud, held untenable; that the inference of fraud from the facts found was inevitable, and as matter of law the referee erred in giving judgment against plaintiff.</p>

The nature of the action and the material facts are stated in the opinion. A creditor cannot be held to have elected to affirm or ratify a void or voidable assignment unless it is proven that he had knowledge of the fact at the time or else that the law held him responsible for such knowledge. (Manning v. Kernan, 73 N. Y. 45; Burrill on Assignments, 395; Sanger v. Wood, 3 Johns.

reversed, a judgment in favor of plaintiff, entered upon the report of a referee. The nature of the action and the material facts are stated in the opinion. It is sufficient if the plaintifi was hindered and prevented in such a manner, or by such means, as to make it impossible for him to perform and finish the work under his contract within a reasonable time after March 1st, the day originally fixed by the contract.

Winfield for fees as referee. John J. Anderson, a former receiver of said company, made claim against its assets for compensation as receiver and for an allowance for counsel fees,-etc. The matter was referred to Mr. Winthrop to take proofs and report the same to the court with his opinion. After the hearing, upon petition of Mr. Winfield, an order was made August 6,1881, fixing his fees as referee.

These were appeals from various orders of the General Term of the Supreme Court, in the first judicial department, made January 17, 1883.

The nature of the action, the allegation stricken out and the . material facts are set forth in the opinion! The Court of Appeals has jurisdiction to hear and determine the appeal from this order of the General Term.

An order of arrest was issued to the sheriff of the county of Yew York, under which defendant was arrested and held to bail. A copy of the bail bond was served on plaintiff’s attorney, who served notice of exception. Due notice of justification of bail was given, and on the day specified no one appearing for plaintiff, the bonds and securities were approved .by defendant and the bond filed as prescribed by the Code. There is no power in the court to open plaintiff’s default.

Plaintiffs’ complaint alleged in substance, among other things, that they were, and had been for many years, manufacturers and wholesale dealers in certain games and puzzles, to which they had given 'the names above stated, invented by them as trade-marks, to distinguish them from the manufactures of others, and which names were placed upon the boxes containing the puzzles and on the packages in which they were put up for sale; under which names they had become widely known…

Hoyt, under a policy issued by defendant, upon the fund in'the hands of its receiver. The material facts are stated in the opinion. The appellant was entitled to equitable relief. (Rose v. Rose, Amb. 331, 332; Wheeler v. C. Mut. L. Ins. Co., 82 N.Y. 543, 549, 552; Klein v. Ins. Co., 104 U. S. 90; De Forest v. Bates, 1 Edw. Ch. 394, 397; 1 Pomeroy’s Equity, §§ 450, 451.) The failure of the company excused the claimant from making an application for a paid-up policy afterward.

The facts, so far as material, are stated in the opinion. If a clause be inserted in a contract creating a forfeiture on the happening of certain events, the party who puts it out of its power to comply herewith cannot, and in justice and equity ought not to, insist upon said forfeiture, unless such party fully complies with the conditions. (25 N. Y. 196; 82 id. 336; Empire Mut. L. Ins.

(Reported below, 29 Hun, 96.) The facts are stated in the opinion. Defendant had a right to apply his earnings within sixty days of the commencement of the proceedings to the support of his family; they were the same as exempt property. (Code of Civ. Pro., § 2463.) Defendant should have left the wages uncollected until the injunction was removed, or until the close of the supplementary proceedings and further order in the premises.

<p>The provision of the Code of Civil Procedure (§ 451), authorizing a plaintiff, who is ignorant of the name of a defendant, to designate him in the summons by a fictitious name, implies an action commenced, and a defendant sued, or intended to be sued, whose name is unknown ; it does not permit the use of such a name applicable tono particular individual, but adopted as an expedient to cover the name of a person whose name is known, who is not sued or intended to be sued at the outset, and thus permit him to be brought in, in case plaintiff discovers, at some later period, that he should have been made a defendant.</p> <p>It seems, that the remedy in such a case is by application to amend the summons, and bring in the newly-discovered party.</p> <p>In an action brought to test the validity of certain town bonds, and to restrain their transfer pending the litigation, the Bank of O. was made a defendant. Fictitious names were used to designate defendants whose names were unknown. Upon an affidavit averring that V. W., the president of said bank, had testified that he at one time owned $30,000 of said bonds and had disposed of them, and that S., the cashier of said bank, had had the custody of many bonds and knew their owners, an order was obtained for their examination before trial. No official action on the part of the bank was averred, and it was not named either in the affidavit or order as one of the parties to be examined. Neither V. W. nor S., was named as a defendant Held, that the order was properly vacated ; that there was no right to examine the officers as such and by virtue of their relation to the bank ; that it could not be claimed that they were sued by the fictitious names, or that they were expected to be adverse parties (Code, § 870); and that they could not be examined as witnesses, as no case was made for their examination as such. (§§ 873, subd. 5, 883.)</p>

Appeals from orders of the General Term of the Court of Common Pleas in and for the city and county of New York, made May 18, 1883, which reversed orders of Special Term vacating, upon motion of persons claiming as subsequent attachment creditors, attachments issued in each of the causes above entitled. The material facts are stated in the opinion.

The material facts are stated in the opinion.. The summons was served within the statutory time. (Marvin v. Marvin, 75 N. Y. 242; Code of Civil Pro., §§ 638, 787, 788.) The insertion of ʽʽsix” days instead of “ten,” in the summons, did not make it void. (Laws 1874, chap. 545, § 1; Code of Civil Pro., § 31.65, subd. 2; Watkins v. Stevens, 3 How.

dismissing and removing the relator from the police force of the city of New York, which proceedings were brought up for review by certiorari. The material facts are stated in the opinion. The common-law certiorari brings up the question whether there was any evidence to warrant the conviction; in such cases the evidence must appear upon the face of the record, or the conviction will be quashed. (Mullins, Jr., v. People, 24 N. Y. 399; People, ex rel.

Appeal by defendant, William P. Earle, from a judgment of the General Term of the Superior Court of the city of ¡New York, made August 1,1882, which affirmed a judgment in favor of plaintiff and of certain of the defendants herein, entered upon the report of a referee to whom it was referred to take and state the accounts in accordance with the directions of an interlocutory judgment herein.

(Mem. of decision below, 15 J. & S. 522.) This action was originally brought against William C. Conner, as sheriff of the city and county of New York, for an alleged wrongful seizure and conversion of certain personal property which plaintiff had purchased of one Halloran. Defendant justified under an execution against Halloran,. claiming that the sale was fraudulent as against the creditors of the vendor.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made October 27,1882, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term, and granted a new trial. (Reported below, 28 Hun, 158.)</p> <p>This action was brought to recover damages alleged to have been sustained by plaintiff by reason of the erection of a new wharf or bulk-head in front of plaintiff’s wharf upon the Hudson river, and the filling in of the intervening space, thus cutting off access by vessels to plaintiff’s wharf The material facts are stated in the opinion.</p> <p>As the proprietor of the riparian upland, Astor had no estate in, or easement upon, the land below high-water mark. The sovereign, as the owner of the land under water, could raise it above the surface, and improve it as he might think fit, without any just complaint on the part of Astor. The rights of the latter, and his heirs, are derived from the deeds alone. (Lansing v. Smith, 4 Wend. 9; Gould v. H. R. R. Co., 6 N. Y. 522; People v. Tibbets, 19 id. 523; Furman v. The Mayor, 10 id. 567; Yates v. City of Milwaukee, 10 Wall. 504; Barney v. Keokuk, 94 U. S. 324.) The city of Hew York, under its various grants of land under water, had a clear power to extend the ripa or shore in front of Astor, out to a line anywhere within four hundred feet beyond low-water mark. (Commonwealth v. Alger, 7 Cush. 53; Dongan Charter, §§ 3,14; 1 Bliss, Olney and Whitney’s Laws, 6, 14, 50, 52; Montgomerie Charter, §§ 37, 38.) The legislature of the State, from which the city derived all the title and authority which it possessed in or over the land acquired under the act of April 3, 1807, could not itself empower the city to create the easement or servitude insisted upon by the respondent. (Sedgwick on Stat. and Const. Law, 153; Dwarris’ Statutory Construction, 479.) Hor can it be successfully argued that the alienation of West street and the incumbering of the title to the lands beyond it, in the manner claimed by the respondent, would not utterly preclude the city from the discharge of the obligation imposed upon it. (Whitney v. The Mayor, 6 Abb. N. C. 327.) The language of the deeds to Astor confers upon the grantee all the wharfage which might at any time thereafter be earned at the wharf, to be erected upon the premises, but does not impart a perpetual guaranty that the structure shall forever remain a wharf, or that the city will never do any thing to abridge the duration of the power to collect wharfage. (Mayor of Alleghany v. O. & P. R. R. Co., 26 Penn. St. 355, 360; Monongahela Nav. Co. v. Coons, 6 W. & S. 101, 113; Hagan v. Campbell, 8 Porter [Ala.], 925; Townsend v. Brown, 4 Zabr. 80, 87; Stevens v. P. & N. R. R. Co., 34 N. J. 532, 534; Charles River Bridge v. Bridge, 11 Peters, 420, 544-9; D. & P. R. R. Co. v. Litchfield, 23 How. [C. C.] 66, 88; Gildart v. Gladstone, 1 East, 675; Story v. N. Y. El. R. R. Co., 2 Abb. N. C. 479, 495; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666; Newton v. Commʼrs, 100 id. 561; Binghamton Bridge, 3 Wall. 575; Mills v. St. Clair Co., 8 How. [U. S.] 579; Perrine v. Canal Co., 9 id. 177; Butler v. Pennsylvania, 10 id. 414; R. R. Co. v. R. R. Co., 13 id. 78; Bʼk of Ohio v. Knoof, 16 id. 376; R. R. Co. v. U. S., 92 U. S. 741.) All grants of money or property by a State to one of its municipalities, to be administered by it as a subordinate governmental agency, still remain within the absolute control of the State. Such grants are not contracts within the meaning of that provision of the Federal Constitution which preserves the obligation of contracts. (Angell & Ames on Corporations, §§ 30-36; Dartmouth College v. Woodward, 4 Wheat. 636; Trustees of the University v. Winston, 9 Ala. 17.) The city had no power to create the easement in question. (Whitney v. Mayor, etc., 6 Abb. N. C. 327; Furman v. Mayor, etc., 5 Sandf. S. C. 16; 10 N. Y. 567, 569.) The authority to acquire property or easements given to the dock department by the act of 1871 (Chap. 574) is limited to property or easements not owned by the city. To gather from this, the legislative determination of a judicial question, namely, that the right to fill up in front of the Astor grant does not belong to the city, is inadmissible under the broadest latitude of construction. (Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Nav. Co. v. Coons, 6 id. 101.) The clause in these deeds “ saving and reserving ” so much of the lands within the description as would be necessary to make Washington and West streets of the specified width has all the qualities of an exception, and none of those which characterize a reservation merely. (The Touchstone, 77; 4 Cruise’s Digest, 271, 272; Borst v. Emple, 5 N. Y. 33; Boreel v. Mayor, etc., 2 Sandf. 552.)</p> <p>Under the common law no particular technical words #,re necessary to constitute a valid grant, but any words sufficiently indicating the intention of the parties to such effect will operate as a grant. (4 Cruise’s Digest, 112, tit. 32, Deed, chap. 6, §§ 35, 39, 40; Holmes v. Sellers, 3 Levinz, 305; 4 Kent’s Com. 491; Boreel v. The Mayor, 2 Sandf. 552, 556, 557, 558; 68 N. Y. 552.) The grant of the right of wharfage at a wharf adjoining land under water belonging to the grantor carries with it, as a necessary incident and in legal effect as a part of the grant, a right of way or access to the wharf for vessels, over the grantor’s adjacent land under water. (3 Kent’s Com. 421; Co. Litt. 56 a; Charles River Bridge v. Warren Bridge, 11 Pet. 617; Lord Daroy v. Askwith, Hobart, 234; Pomfret v. Ricroft, 1 Saund. with Williams’ Notes, 323, n. 6; id. n. l; Voorhees v. Burchard, 55 N. Y. 98; Huttemeier v. Albro, 18 id. 48.) The grant of the wharf-age right in question was made by the city merely in its character of proprietor, and to carry out a bargain and sale for pecuniary consideration, and is not a public grant. (Brick Presbyterian Church v. Mayor, etc., 5 Cow. 528, 540.) If the rules of law which have been laid down in relation to the construction of “public grants” were to be applied to the construction of this grant and covenant, the right óf the plaintiff to have the grantor’s land under water adjoining the wharf remain open and unobstructed, so as to admit access to the wharf by vessels, and enable him to take and enjoy the wharfage conveyed by the grant, and the quiet enjoyment of which was assured by the covenant, would still remain clear. (Charles River Bridge v. Warren Bridge, 11 Peters, 420, 545, 548, 557; 7 Pick. 462, 469; Lansing v. Smith, 4 Wend. 8, 22, 23; 8 Cow. 146, 148.) The rights of private wharf or wharfage proprietors in New York city are .not in general held merely as temporary rights, subject to abrogation, without compensation, by new improvements made by the city upon the water front. (Marshall v, Guion, 11 N. Y. 460, 476; Van Zandt v. Mayor, etc., 8 Bosw. 375; Yates v. City of Milwaukee, 10 Wall. 497.) Besides the assurance of perpetuity of tenure and enjoyment which was deducible from the language of the grant arid covenant, there was in existence when Astor received his grant in 1810, a statute, passed after the act of 1798, which shows clearly how the legislature regarded and felt itself bound to treat the rights of individual proprietors who had received grants or made investments under the permanent plan established by the act of 1798. (Act of April 2, 1806; Davies’ Laws, city of New York, 422-3.) Upon the extension of the wharf or bulk-head line further into the river, by the operation performed by the defendant here, the remedy of the private proprietor is for pecuniary compensation. (Marshall v. Guion, 11 N. Y. 460.)</p>

Appeal by defendant, the Western Union Telegraph Company, from order of the General Term of the Superior Court of the city of New York, made November 6, 1882, which reversed a judgment in favor of defendants and granted a new trial. The nature of the action and the material facts are stated in the opinion. The plaintiff must show some violation of a peremptory statute to enable him to maintain his action.

The real estate was occupied and used as a medical college, hospital and free dispensary for women. The lots were assessed, for the year in question, to the owner, and the tax in question levied October 13, 1881. In November, 1881, the relator petitioned the department of taxes and assessments to have the property exempted. The commissioners signed and sent to the comptroller a certificate to the effect that they thereby exempted said property from taxation for the year 1881.

This action was upon a hond. The material facts are stated in the opinion. The defendant, Louisa L. Lyon, although a married woman, is liable on the bond, because she gave it for the purchase-money of land which was conveyed to her.

This action was brought against defendants, the children and devisees, under the will of Herman Thieme, deceased, and against the German Savings Bank of Brooklyn, to have a satisfaction-piece executed by said bank of a mortgage upon a certain lot of which Thieme died seized, canceled and vacated, and to compel the bank to assign the mortgage and accompanying bond to the plaintiffs and for a foreclosure of said mortgage. The material facts are stated in the opinion.

This action was brought against defendant, a former cashier of the plaintiff, to recover damages alleged to have been sustained, because of defendant’s negligence and violation of duty, and to compel him to allow for and pay over profits made by him, by the unlawful use of plaintiff’s funds. The facts so far as material are stated in the opinion.

This action was brought to recover rent for the year ending May 1, 1878, of certain rooms in the city of Hew York, alleged to have been leased for the use of the recorder, and to have been used and occupied up to the date aforesaid. The same leasing was in question in a former action. After the decision of this court therein (83 N. Y. 207) defendant offered judgment in that action, which was accepted and judgment entered in accordance therewith.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 24, 1881, which reversed a judgment in favor of plaintiff, entered upon a verdict, and directed a judgment for plaintiff.</p> <p>This action was brought upon a contract, of which the following is a copy.</p> <p>“ In the event of the contract for the reindexing of the county records being let to me by the board of supervisors, I hereby agree to pay the sum of ten per cent of any and all compensation I may receive for the fulfillment of said contract, to Solomon Wile, as a further consideration for his releasing whatever interest, claim or demand he may have, based on a contract now held by him for the same work and to that effect, after payment to him by the board for all work already done on the same.</p> <p>This 15th day of December, 1874.</p> <p>JOHN H, WILSON.”</p> <p>Prior to the execution of said agreement plaintiff had entered into a contract with the board of supervisors of Monroe county for doing the work specified, and had partially performed the same. In pursuance of the agreement in question plaintiff settled with the board for the work done, and executed a release of all claims under his contract with it, and a contract to finish the work was entered into between the board and defendant, which the latter performed and received the stipulated compensation therefor.</p> <p>Further facts appear in the opinion.</p> <p>Even if invalid when made the contract was, at its date, an executed contract, so far as Mr. Wile was concerned, and the courts will not interfere with it. (Welch v. Nash, 3 Hun, 535; Green v. Godfrey, 44 Me. 25; Andrews v. Marshall, 48 id. 26; Bragg v. Jerome, 7 Mich. 145; Bailey v. Milner, 35 Ga. 330; Judah v. Trustees, etc., 16 Ind. 56; Smead v. Williamson, 16 B. Monroe [Ky.], 492; Kate v. Reiss, 12 La. Ann. 166; Pepper v. Haight, 20 Barb. 429, 437-8; Morgan v. Groff, 4 id. 526.) There was a sufficient consideration for the defendant’s promise in this case. (Costar v. Brush, 25 Wend. 628, 633; Earl of March v. Pigott, 5 Burr. 202; Perkins v. Bamford, 3 N. H. 522; Barnum v. Barnum, 8 Conn. 469; Russell v. Cook, 3 Hill, 504; Stewart v. Ahrenfeldt, 4 Denio, 189; O’Keson v. Barclay, 2 Penn. 531; Taylor v. Patrick, 1 Bibb, 168; Fisher v. May’s Heirs, 2 id. 448.) The law will not presume a contract illegal as against public policy, and so void, when it is capable of a construction which will make it lawful and valid. (Curtis v. Gokey, 68 N. Y. 304; Ormes v. Dauchey, 82 id. 443; Wellington v. Kelley, 84 id. 543; Brown v. Brown, 34 Barb. 535; Southard v. Boyd, 51 N. Y. 177; Lyons v. Mitchell, 36 id. 235; Cummins’ Trustees v. Barkalow, 4 Keyes, 514; S C.,1 Abb. Dec. 479; Costar v. Brush, 25 Wend. 628.)</p> <p>The contract between Wile and Wilson was void for want of consideration. (Laws of 1843, chap. 199; Laws of 1869, chap. 855, § 7.) The forbearance to assert a claim under a void agreement is not a sufficient consideration to support a contract. (Story on Contracts § 443; Sherman v. Barnard, 19 Barb. 291.) The contract' is against public policy and void. (Harris v. Roof’s Ex'rs, 10 Barb. 489; Brown v. Brown, 34 id. 535; Gray v. Hook, 4 Comst. 449; Woodworth v. Bennett, 43 N. Y. 273.)</p>

(Mem. of decision below, 14 J. & S. 559.) This action was brought - to restrain defendants from using certain devices, the exclusive right to the use of which as a-trade-mark was claimed by plaintiffs, and to recover damages, etc. The material facts are stated in the opinion. The trade-mark not being sold but remaining as undivided assets of the old firm, all the members of the dissolved firm could use it in their business.

.affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. This action was brought to set aside a sale on foreclosure by advertisement of a mortgage executed by defendants Shank & Shoemaker to defendant the First National Bank of Union Springs; to haye a mortgage owned' by plaintiffs, covering the same premises, adjudged to be the prior lien, and for a foreclosure thereof. The material facts are stated in the opinion.

(¡Reported below, 24 Hun, 612.) This action was brought to recover the amount of two,drafts drawn by Bingham Bros., of Evansville, Ind., on A. Feigelstock, of the city of New York, which were discounted by plaintiff at Evansville, and forwarded to New York for accept^ anee and payment by the drawee, by whom they were dishonored.

<p>Where the compensation of an employe of the State is fixed by statute, it cannot be reduced by the State oflicer under whom he is employed.</p> <p>The fact that the employe takes, for a time, the reduced compensation, does not estop him from claiming the residue.</p> <p>The provision of the appropriation act of 1875 (Chap. 634, Laws of 1875), fixing “the compensation of the men employed as firemen in the capítol,’’ had reference to the old capítol; it was not confined to firemen in service in 1875, but was prospective in its character and was in force in 1881.</p> <p>Accordingly held, that plaintiff, who was employed as fireman in May 1880, by the superintendent of the old capítol, and who continued to serve in that capacity until about December, 1881, but who had been paid during the summer months but one-half the daily allowance fixed by said act, was entitled to the balance; and that a decision of the board of audit rejecting his claim therefor was error,</p>

<p>Appeal from order of the - General Term of the Supreme Court, in the first judicial department, made March 20, 1883, which reversed in part an order of Special Term directing as to the distribution of a fund held by the Farmers’ Loan and Trust Company, as trustee under the will of Eobert Brown, deceased. (Reported below, 29 Hun, 412.)</p> <p>The said will, after various devises and legacies by the seventh clause, directed the testator’s residuary estate to be divided into ten equal shares, one of these it gave to each of the testator’s four sons, the remaining six shagés were disposed of as follows :</p> <p>“ I give and bequeath unto each of my six daughters, viz.: Ann, wife of Seabury Ely; Catharine, wife of Charles L. Clussman; Sarah, wife of Samuel B. Fleming; Maria, wife of William E. Loudon; Emeline and Louisa, for and during the term of their natural lives respectively, the rent, interest and income of one other part or share ofj my said estates (subject, nevertheless, as aforesaid), being the six remaining shares, and upon the death of any or either of my said daughters I give and devise and bequeath unto such child or children as my said daughters so dying shall have or leave living at their decease; and to their heirs and assigns of such child or children forever as tenants in common, one part or share of my said estate — that is to say, the children of said daughters to have the part or share whereof their mother received the rent and income during her life.”</p> <p>Maria Loudon, one of the daughters named, died intestate, in 1882, leaving three children, her surviving. A son of hers had died in 1872, leaving three children. At the time of the death of Mrs. Loudon the fund, to the income of which she was entitled, was in the hands of said The Farmers’ Loan and Trust Company as trustee and administrator with the will annexed. Her three surviving children demanded the fund, claiming that the children of their deceased brother had no right or interest therein, and upon refusal of said trustee to pay them, made application to the Supreme Court to compel such payment. The order at Special Term sustained their claim ■ and directed the fund to be paid over to them. The order at General Term reversed this order so far as it excluded the children of the deceased son of Mrs. Loudon from participating in the distribution.</p> <p>In construing a will the object of the courts is to ascertain the intention of the testator, as expressed in the language of the will. (Abbott v. Middleton, 7 H. L. C. 68; Jarman on Wills, 243; Lowndes v. Lowndes, 4 Burr. 2246; Wylie v. Lockwood, 86 N Y. 291, 300; In re Hanfield, L. R., 15 Ch. Div. 86; In re Parker, id. 525.) The words “ child or children ” must always be construed in their primary sense, unless there are no persons in being who answer to such description, or unless it is clearly evident that such interpretation would defeat the will of the testator. (Palmer v. Thorn, 84 N. Y. 516; Mowatt v. Carow, 7 Paige, 328; Low v. Harmony, 72 N. Y. 408; Hone v. Van Schaick, 3 id. 538.)</p> <p>The law favors a construction which will not tend to the disinheriting of heirs unless the intention to do so is clearly expressed. (Scott v. Guernsey, 48 N. Y. 120; Low v. Harmony, 72 id. 408; Bouvier’s Law Dict., Legacy; 6 Ves. 102; 2 Barn. & Ald. 448; 2 Blackstone’s Comm. 381; 1 Jarman on Wills, 404-412.) The words “ such child or children ” are not necessarily limited to the immediate offspring, but embrace grandchildren, where the other portions of the will show such intention of the testator, or such construction is necessary to carry into effect all the provisions of the will. (Prowitt v. Rodman, 37 N. Y. 42; Scott v. Guernsey, 48 id. 106; Lawrence v. Hibbard, 1 Bradf. 252; Bowne v. Underhill, 4 Hun, 130; Ingraham v. Mead, 3 Wall. Jr. 32; Lipton v. Lipton, 1 Cold. [Tenn.] 253; Osgood v. Loveridge, 33 Me. 464; Coles v. Brown, 4 Sandf. Ch. 123; Doe v. Weber, 1 B. & Ad. 713; 4 Kent’s Comm. 419, n.; Earl of Lyons v. Mar. of Waterford, 1 De Gex, F. & J. 637; 2 R. S. 97, § 76; Beebe v. Estabrook, 79 N. Y. 246.) The words. “ child or children ” have been construed as synonymous with issue. (Doe v. Webber, 1 B. & Add. 713; Wild’s Case, 6 Coke, 17; Doe v. Simpson, 3 M. & G. 929; Parkman v. Bodoin, 1 Sumner, 368.) The words “ shall have” are to be construed in their ordinary and usual sense. (30 Eng. Law & Eq. 435; Williamson v. Field, 5 Sandf. Ch. 532; Grout v. Townsend, 2 Denio, 336.) No remainder will be construed to be contingent which may be held to be vested. (Moore v. Lyons, 25 Wend. 119; Williamson v. Fields, 5 Sandf. Ch. 533; 2 Jarman on Wills [5th ed.], 200; Weakeley v. Rugg, 7 Term R. 322, 326; Pinbury v. Elkin, 1 P. Wms. 563; White v. Hill, L. R., 4 Eq. 265; Ryden v. Willet, L. R., 7 id. 472.) “ Or ” is never changed to “ and ” unless it be apparent on the face of the will that the latter was intended. (Armstrong v. Mason, 1 Bradf. 315; Gettings v. McDermott, 2 M. & K. 75; Harrison v. Bowes, 3 Jones’ Eq. [No. Car.] 578.) The words “ leave living at their decease” neither add to nor detract from the result of the construction to be given to the words “ shall have ” immediately preceding, whether the term “ child or children ” is to be construed as including' grandchildren, or as synonymous with “ issue,” for the grandchildren here were “ living ” at the time of the decease of ' their grandmother, one of the daughters of the testator. (Scott v. Guernsey, 49 N. Y. 120; 22 Penn. St. 9; Low v. Harmony, 72 N. Y. 414.) The words, “and to the heirs and assigns of such child or children,” manifest further the intention of the testator that the children of any “ such child ' or children ” which his deceased daughter might “ have,” should inherit. (Den v. Manners, 20 N. J. Law, 145; Low v. Harmony, 72 N. Y. 408; Scott v. Guernsey, 48 id. 106.) The words “forever as tenants in common” show that the testator intended to exclude survivorship among the children of his deceased daughter, (Hyatt v. Pugsley, 23 Barb. 299.)</p>

This action was brought” to foreclose a mortgage executed in September, 1843, by Josiah Wright as trustee of Thankful Wright, appointed under and by an ante-nuptial agreement, in anticipation of the marriage of the cestui que trust with Ezra Sprague. In December, 1843, another mortgage was also executed by said trustee to plaintiff. The mortgage in question originally covered four parcels of land. Various- payments were made upon the mortgages.

The material facts are stated in the opinion. As the buildings were erected on the land of the society, they prima, facie form a part of the realty. (Smith v. Benson, 1 Hill, 176; Eastman v. Foster, 8 Metc. 19, 20; Loughran v. Ross, 45 N. Y. 792.) As a rule, exemptions from taxation are to be strictly construed. (Buf.

The defendant was agent in the city of New York for certain foreign fire insurance companies. He rendered to plaintiff’s treasurer an account of gross receipts by him as agent during the year 1881, for premiums for insurance by said companies on property in the city of New York.

This action was brought to restrain defendants from .using the word “Royal” in connection with flavoring extracts manufactured by them, plaintiff claiming the exclusive right to such use as a trade-mark. The firm of Zeigler & Seal, in 1868, began the manufacture of flavoring extracts; they manufactured three grades or qualities. To designate these grades they used the words “English,” “Boyal” and “London.” Up to 1873 the word “ English ” was used to indicate the best grade.

1, 1880, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. (Reported below, 14 J. & S. 13.) This action was brought to compel the performance of an alleged oral contract between plaintiff and defendants Brooks & Mefflin. The material facts are stated in the opinion.

This action was brought to compel the defendant to issue to plaintiff a paid-up policy. The facts, as found by the court, are substantially as follows : Defendant issued to plaintiff a policy of insurance upon the life of her husband, for her sole use, in the sum of $3,000, in consideration of the annual payment by the plaintiff of the sum of $389.16.

The nature of the action and the material facts are stated in the opinion. The note having been merged in the judgment no longer exists, and the judgment being against Corbin alone, he alone is bound by it, and Smith is discharged thereby. (Robertson v. Smith, 18 Johns. 457; Chitty on Bills, 350; Pierce v. Kearney, 5 Hill, 85; Oakley v. Aspinwall, 4 N. Y. 542; 9 Serg. & Rawle, 145; 4 Johns.

This action was brought to foreclose a mortgage executed by defendant, Delos Fry, to Solomon Fry, and assigned by the latter to the plaintiffs.

, Broadway from Manhattan to One Hundred and Thirty-third street. As an item of expenditure was included $624, damages to the Harlem Gas-light Company in taking up and replacing their pipes, required by change of grade. The assessment upon the lot of the petitioner was $246.95. The order of the General Term required this to be reduced in the proportion that the said item bears to the whole expense, to-wit, to $239.94.

<p>Appeal from order" of the General Term of the Supreme Court, in the first judicial department, made March 7, 1883, which affirmed an order of Special Term, denying an application for an order of arrest herein.</p> <p>This was an action for the claim and delivery of personal property. One Harris was arrested for obtaining certain personal property by false pretenses ; a warrant of arrest was issued, under which he was arrested and committed for examination. The property was found in the possession of plaintiffs, who were pawnbrokers. The magistrate gave to an officer a written order to demand the property, the officer made the demand at plaintiffs’ place of business, and the person in charge delivered up the property to him, which was examined and identified by the owner, and by direction of the magistrate was delivered over to defendant, who was property clerk of the police department. A requisition having been issued herein to the sheriff requiring him to replevy the property, by virtue thereof he demanded the same of defendant; and, upon his refusal to deliver up the same, this motion was made under section 550 of the Code of Civil Procedure.</p> <p>The court erred in holding that defendant was justified in refusing to deliver the chattels to the sheriff when demanded, pursuant to the process delivered to him in this action, on the ground that they were in the custody of the law, and the court had no power to compel defendant to obey the process. (Code of Crim. Pro., chap. 12, §§ 686, 687, 691, 692; Code of Civ. Pro., § 550, subd. 1; id., § 1690.) The chattels in question, as to the-plaintiffs, are not in the custody of the law. (Lynch v. St. John, 8 Daly, 14; Clark v. Skinner, 20 Johns. 465; Rogers v. Weir, 34 N. Y. 465; Hall v. Tuttle, 2 Wend. 475; Wynehamer v. People, 13 N. Y. 394.) It was the duty of the defendant to deliver the property to the sheriff pursuant to the process in replevin, as the same were not held for the furtherance of , justice, and therefore not in custodia legis. (Lynch v. St. John, 8 Daly, 143; Morris v. De Witt, 5 Wend. 72.)</p> <p>'The statutes of this State have made specific provision for the disposition of property alleged to be stolen. (Code of Crim. Pro., §§ 31, 52, 53, 54 ; 3 E. S. [6th ed.] 1046; Code of Crim. Pro., §§ 685, 686, 687, 688, 689, 690, 691; Laws of 1873, chap. 335, §§ 61-66.) Such disposition is wholly inconsistent with its return to a claimant prior to the termination of the prosecution of the alleged criminal, whether such claimant is the owner or not. \Houghton v. Bachman et al., 47 Barb. 388; Dunn v. Oilman, 34 Mich. 256 ; Weller v. Ely, 45 Conn. 547.) Such a temporary sequestration of private property is within the police power of the State. This practice is approved and followed in other States. (Potter’s Dwarris on Statutes, 444, 455 ; Passenger Cases, 7 How. U. S. 283; 1 Hale’s P. C. 54; In re Gheeseborough, 78 N. V. 236; Thorpe v. B. dh A. B. B. B., 27 Vt. 149 ; Cooley’s Const. Laws, 594; Mayor v. Lord, 18 Wend.. 129 ; Bussell v. Ma/yor, 2 Denio, 461; Sorocco v. Geary, 3 Cal. 69; Hale v. Lawrence, 1 Zahr. 714; Am. Print Works v. Lawrence, id. 248 ; Meeker v. Van Bensselaer, 15 Wend. 379; McDonald v. Bedwing, 13 Minn. 381; Dillon on Mun. Corp., § 93 ; Sedgwick’s Const. Law, 434; Matter of Townsend, 39 N. V. 171, 1S1, 182; Va/rick v. Smith, 5 Paige, 136-160; Prentice’s Criminal Procedure, 46; .Allison’s Criminal Law Pr. [833] p. 148 ; E. S. [Mass.], chap. 170, §5; E. S. [Me.] 672, § 14; E. S. [Minn.], chap. 95, § 31; Iowa Eevised Code of 1880, § 4654; California Penal Code, § 14407; Arkansas Eev. Stat., chap. 45, § 2085; Wisconsin Eev. Stat., § 4624; G™n. Code of Illinois, chap. 38, div. 8, § 378; Code of Grim. Pro. [Ind.], §§ 1622, 1623; Eev. Stat. [E. I.], tit. xxx, chap. 214, § 23; McClellan’s Digest [Fla.], 1881, p. 437; Code of 1876 [Ala.], §§ 4006, 4019 ; Compiled Laws of Mich., 1875, p. 1515; Code of Virginia, 1873, tit. 65, chap. 199, § 4; New Hampshire General Laws, 1873, chap. 255, § 4; Whart. Grim. Pro., §§ 60, 61.)</p>

This action was brought by plaintiff individually, as sole surviving partner of the firm of Eckert & Winter, and as one of the executors of the will of William Eckert, the deceased partner, against the other executor, who refused to join as plaintiff, and the beneficiaries under the will, among other things, to close, up the affairs of the partnership.

The General Term order states the affirmance to be “ on the ground that the defendant was insolvent, or in contemplation of insolvency at the time said attachment was granted, and, therefore, the court below had no jurisdiction to issue said attachment.” The material facts are stated in the opinion.

The material facts are stated in the opinion The arrangement made between Hallahan’s assignee and the respondent, his only remaining creditor, for the purpose of putting an end to the trust and relieving the assignee and his sureties from further responsibility, was a mere private agreement, and must be viewed and construed as such.

These proceedings were instituted to punish H., an attorney, for alleged professional misconduct. The Special Term granted the application.; its order was affirmed by the General Term, and from such affirmance an appeal was taken to the Court of Appeals. After the appeal to the Court of Appeals had been perfected, Henry H. Morange, who had up to that time acted as attorney and counsel for H., declined to argue the appeal.

(Reported below, 29 Hun, 602.) Mr. Wolfe, the owner of the land, who made default on the hearing before the commissioners, on the motion to confirm the report, presented affidavits, explaining and excusing his default, and asked to have the same opened, the report set aside and a rehearing ordered; this application was denied.

<p>In proceedings to wind up the affairs of an insolvent life insurance company M. was retained as attorney for certain policy-holders, and appeared on their behalf. A dividend to each of the clients of M. was declared; he, claiming a lien thereon for his services, moved that the receiver be required to pay such dividends to him. It did not appear that the appearance of M. was entered on the record, or that his clients were in any way made formal parties to the proceedings as prescribed by the Code of Civil Procedure (§ 1807), or that his services procured the dividends. The motion was denied unless M. should file with the receiver an authority to receive such dividends signed by his clients. Held no error; that if M. had a lien (as to which qumre), it was not proper for the court to make an order practically enforcing it, without notice to or a hearing of his clients.</p> <p>It seems, that the lien of M., if any, is not in gross on all the dividends for all his services, but a separate lien on each dividend for services rendered to the one entitled thereto.</p>

<p>Where, after the denial of a motion to vacate an order of arrest, the defendant renews the motion upon further affidavits, this is a waiver of the right to appeal from the order denying the first motion.</p> <p>It seems the fact that no formal leave to renew a motion on additional papers was granted does not necessarily determine that a second motion made on an order to show cause is not a renewal; the granting the order to show cause, and hearing the second motion on the original and additional papers is, in effect, granting leave to renew, and a renewal.</p>

The referee made and signed his report in favor of plaintiff, and notified the latter’s attorney of the fact and of the amount of his fees. The plaintiff was not able to pay the whole of that amount in cash, and proposed to the referee that the report should be delivered on his paying $300, and securing the balance by the plaintiff giving the referee a lien upon the judgment and claim in suit.

<p>A judgment against the commissioners of highways of a town, upon a contract for the repair of a highway, does not necessarily establish any liability on the part of the town.</p> <p>The commissioners have no general authority to bind the town by their contracts, and no corporate duty is imposed upon it in respect to the care of highways. The burdens assumed by it are voluntary, and the assumption must precede any authorized action on the part of the commissioners, save in the exceptional cases prescribed by statute (§ 1, chap. 103, Laws of 1858, as amended by chap. 448, Laws of 1865).</p> <p>It seems that the commissioners themselves are charged with no duty in respect to the care of the highways of the town, save so far as they are furnished with the power to provide, or are previously provided with funds by the town to accomplish such purpose.</p> <p>The obligation imposed by the provision of the Revised Statutes (1 R. S. 501, § 1), making it the duty of commissioners of highways to give direction for the repairing of the roads and bridges in their respective towns and to cause them to be kept in repair is co-ordinate only with the means furnished as prescribed by the statute, and does not authorize, either expressly or by implication, the incurrence of any debt or obligation upon the part of the town.</p> <p>The provision of the statute (1 R. S. 357, § 8), making judgments by or against town officers in actions prosecuted against them in their name of office a town charge, refers only to actions brought by or against them upon contracts authorized by statute.</p> <p>In order, therefore, to make a judgment against commissioners of highways a town charge, it must have been recovered upon a liability incurred by them acting within the scope of their authority, and in such case the claim therefor must be presented, passed upon and audited by the board of town auditors.</p> <p>Van Alstyne v. Freday (41 N. Y. 177), Boots v. Washburn (79 id. 207), distinguished.</p> <p>In proceedings to compel defendant, by mandamus, to levy and assess upon the town of- K., or upon territory formerly included in that town, the amount of a judgment held by plaintiffs against the commissioners of highways of the town, the only proof was the judgment-roll, by which it appeared that the cause of action arose out of a contract for the repair of the highways of the town. Held, that to entitle relators to maintain the proceedings, it was essential for them to show a valid judgment against the town, or-sucli a judgment against its commissioners as precluded it from disputing its validity ; that no such judgment was established ; and that an order granting the application for the writ was error.</p>

This action was brought to recover the amount of certain coupons alleged to have been cut from bonds issued by defendant, under the act chapter 907, Laws of 1869, in aid of the construction of the Delhi and Middletown Railroad Company. The material facts are stated in the oninion. The county judge not having acquired jurisdiction of the proceedings his adjudication is void.

This action was brought by plaintiff as a stockholder of the defendant, to have certain certificates of indebtedness issued by it declared illegal, and to restrain it from paying the same or the interest thereon. The capital stock of a corporation is that sum which has been actually paid in by subscribers to the capital stock for the purpose of the trade or business in which the corporation is engaged.

the General Term of the City Court of Brooklyn, which affirmed an order of Special Term denying a motion for a writ of mandamus requiring defendant, as principal of public school Ho. 5, in the city of Brooklyn, to admit the relator to said school. The material facts are stated in the opinion. appellant. Defendant was the proper person against whom to ask for a mandamus.

” The complaint in the action alleged ‘ in substance that said Lichtenheim, in consideration of $800 paid to him by defendants’ firm, transferred to them a claim or demand against the United States for $24,492.50, of which claim plaintiff was the real owner. That said transfer was made for the account and benefit of plaintiff only, he agreeing to pay to defendants, for their services in collecting the same, ten per cent on the amount collected, and the said sum of $800.

The defendant, Anderson D. Gibbs, was indicted June 9, 1882, for an assault with intent _ to kill one Samuel Mabee. Upon his trial at the Tompkins County Sessions, Marcus Lyon, County Judge, presiding, defendant was, October 12, 1882, convicted of assault with intent to do bodily harm. A memorandum for affirmance of the judgment was written in the Supreme Court, General Term, by Boabdman, J. (Bocees, J., concurring). Learned, P. J., wrote a dissenting opinion.

Appeal, by defendant Read, from judgment of the General Term of the Superior Court of the city of Buffalo, entered upon an order made June 20,1881, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 18, 1881, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. (Reported below, 25 Hun, 210.)</p> <p>This action was brought by plaintiff to recover damages for injuries alleged to have been sustained, by reason of defendant’s negligence. Plaintiff was in the employ of Martin & Lee, who were engaged under a contract with the county of Kings in repairing the upper part of a building, in the grounds of the Kings county penitentiary used for shops. Defendant was engaged in manufacturing shoes in said building under a contract with said county, by which the latter agreed to furnish the services of a specified number of convicts, and also suitable shops in the penitentiary grounds in which to employ the convicts and assistant keepers to keep them in order. There was an elevator in the building, near the stair-way, leading to the different stories ; this elevator was used by defendant to carry material to the different stories; plaintiff descended the stairs to the first floor and stepped into and fell down through the elevator pit. The elevator had gone to one of the upper stories, being run, as the evidence tended to show, by one of the convicts whose services were furnished under the contract.</p> <p>Further facts appear in the opinion.</p> <p>The relation existing between The Bay State Shoe and Leather Co., the defendant, and the. convicts, was that of master and servant. (Kimball v. Cushman, 103 Mass. 198; Wood on Master and Servant, 10, 11; Althorp v. Wolfe, 22 N. Y. 355; Sadler v. Henlock, 30 Eng. L. & Eq. 167; Hill v. Morey, 26 Vt. 178; Stevens v. Armstrong, 16 N. Y. 435; Gleason v. Amsdell, 11 N. Y. W’kly Dig. 59.) It was such as to cause the defendant to owe the plaintiff a specific legal duty. (Swords v. Edgar, 59 N. Y. 30; Indermaur v. Dames, 1 C. P. 274, 277; S. C., 2 id. 311; Lancaster Canal Co. v. Parnaby, 11 Ad. & El. 223; Smith v. Dock Co., L. R., 3 C. P. 326; Nicholson v. Erie R. R. Co., 41 N. Y. 537; Shearman & Redfield on Negligence, 591, § 508; Ackert v. Lansing, 59 N. Y. 646; Carlton v Franconia, etc., Co., 99 Mass. 219; Sweeney v. Old Colonie, etc., Co., 10 Allen, 393.) The question of contributory negligence on the part of the plaintiff was a question for the jury. ( Weber v. N. Y. C. R. R.. Co., 58 N. Y. 451; Thurber v. Harlem R. R., 60 id. 330, 331; Hawley v. N. C. R. R., 82 id. 370; Bolton v. Baxter, 58 id. 411.) It is only where there is no evidence in law which if believed will sustain a verdict that the court is called upon to nonsuit. (Colt v. Sixth Am. R. R. Co., 49 N. Y. 671; Painton v. N. C. R. R., 83 id. 7; Fort v. Whipple, 11 Hun, 586-593; Colgrove v. N. Y. & H. R. R. Co., 20 N. Y. 494; Ernst v. H. R. R. Co., 35 id. 25.)</p> <p>When the circumstances point just as much to negligence as to its absence, or point in neither direction, plaintiff cannot recover. (Cordell v. N. Y. C., 75 N. Y. 330; Reynolds v. N. Y. C., 54 id. 248; Riceman v. Havemyer, The Reporter, April 13, 1881.)</p>

The surrogate could not divide up the claim contrary to the evidence. It was indivisible as an entire demand, and carries with it the undivided period wherein the testatrix boarded with the plaintiff. (Purcell v. Fry, 19 Hun, 595; 60 N. Y. 106.) He had no right or power to interpose the statute' of limitations.

Mack, entered upon a decision of the court on trial at Special Term, and directed judgment for plaintiff for the relief demanded in the complaint. (Reported below, 25 Hun, 418.) This action was brought to restrain defendants from obstructing the light and air from the windows of plaintiff's church edifice, adjoining a lot owned by said defendant, Rhoda E. Mack. Plaintiff was formerly owner of said lot, which was subject to a mortgage given to one Bell.

This action was brought upon a policy of fire insurance issued by defendant to John E. Benninghoff. The application for the policy was made orally by the insured to one Jacoby, defendant’s agent at Seneca Falls. No written application was made or authorized. The agent, however, without the knowledge of the insured, made out and forwarded an application.

(Reported below, 28 Hun, 515.) The nature of the proceedings and the material facts are-stated in the opinion. The clause in chapter 191, Laws of 1880, permitting the talcing of private property for public use is a positive prohibition against the taking of property for private use, or for any use other than a public use.

It appeared that before the proceedings were, instituted, the petitioner voluntarily paid one-third of the assessment. Upon the actual facts proven the petitioner was entitled only to an order which should vacate so much of the assessment as was unpaid when the proceeding was commenced.

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made at the October term, 1882, which affirmed an order of Special Term striking out as irrelevant certain portions of defendant’s answer herein.</p> <p>The complaint in this action contained two counts. The first for false imprisonment, the second malicious prosecution, both growing out of the same transaction — that is, the procuring the arrest and imprisonment of plaintiff under a warrant of attachment in proceedings to punish Mm for contempt in disobeying a subpoena issued by defendant as chairman of the board of supervisors of Livingston county.</p> <p>The substance of that portion, of the answer stricken out is • set forth in the opinion.</p> <p>The matter stricken out by the order of the court below was properly pleaded, and evidence of the facts, if pleaded, was admissible upon the trial of the action, to rebut the presumption of malice, and to mitigate the punitive damages, and the order striking out these facts as irrelevant was erroneous. (Barr v. Shaw, 10 Hun, 580; Walter v. Fowler, 85 N. Y. 621; Littlejohn v. Greeley, 22 How. Pr. 345; McGregor v. McGregor, 35 id. 385; Town of Essex v. N. Y. etc., R. R. Co., 8 Hun, 361; 2 Wait’s Pr. 482-3-4.) In actions of libel and slander, the defendant may set up in his answer and prove upon the trial, in mitigation of damages, any facts which legitimately tend to prove the absence of malice, and this with or without a justification or other defense. (Bush v. Prosser, 11 N. Y. 347; Dolwin v. Wilder, 34 How. Pr. 488; Hatfield v. Lasher, 17 Hun, 23; 81 N. Y. 246; Code of Civil Procedure, § 536; Wandell v. Edwards, 25 Hun, 498.) The complaint being for two causes of action, arising from the same state of facts, to one of which defendant claims to have an absolute defense, he was bound to answer, for he cannot compel the plaintiff to elect upon which count he will proceed until the trial. (Barr v. Shaw, 10 Hun, 580.) The proper remedy was by demurrer, and not by motion to strike out. (Code, §§ 494, 545; Walter v. Foster, 85 N. Y. 621.)</p> <p>Defendant is responsible for the institution of the proceedings in which the plaintiff was arrested. (87 N. Y. 171.) The order of the Suprenre Court is not appealable to this court. It was a discretionary order. (Briggs v. Bergen, 23 N. Y. 162; Armstrong v. Weed, 62 id. 250; Jones v. Ludlum, 74 id. 61; Edwards v. Roof, 82 id. 425; Martin v. Windsor, 70 id. 101; Sprague v. Dunton, 14 Hun, 490; Lawrence v. Farley, 73 N. Y. 187.)</p>

(Reported below, 16 J. & S.- 44.) The nature of the action and the facts pertinent to the question discussed are stated in the opinion. The court erred in holding that the right of action was not barred by the statute which governed before the Code of Civil Procedure took effect. (Code of Procedure, § 94; Laws of 1876, chap. 431, § 7; McCluny v. Silliman, 3 Peters, 270; Sedgwick on Stat. and Const.

(Reported below, 16 J. & S. 11.) The nature of the action and the material facts are stated in the opinion. It was not necessary for the respondent to formally consent to carry on the revived proceeding upon the agreed basis; the presumption is that he did. (Sleeper v. Van. Middlesworth, 4 Denio, 431.) In the progress of litigation, the attorney acts under one employment, by his retainer in a cause he is employed to pursue the litigation until the cause is ended.

This action was brought to recover the value of a quantity of jewelry, part of the contents of one of eighteen boxes delivered by plaintiffs to defendant, for transportation from Washington to New York, which jewelry, plaintiffs alleged, was, through defendant’s negligence, abstracted from the box while in its custody.

Appeal by defendants Apgar and Pedersen. from a judgment of the General Term of the City Court of Brooklyn, which modified, and affirmed as modified, a judgment in favor of plaintiffs, and of the other defendants, entered upon a decision of the court on trial at Special Term. The nature of the proceeding and the material facts are stated in the opinion.

(Reported below, 22 Hun, 49.) The nature of the action and the material facts are stated in the opinion. The fraudulent intent to impair the security of the mortgage is the gist of the action. (Gardner v. Heartt, 3 Denio, 232, 236.) Although the facts relied upon by the defendant as a counter-claim would constitute a cause of action, yet they would not impair the plaintiff’s title to the severed wood, or in any manner give the defendant any title to, or lien upon it.

Reported below, 25 Hun, -614.) Said complaint alleged among other things, that by the charter of Long Island City (Chap. 461, Laws of 1871), it is provided that “ all work to be done, or supplies to be furnished for the corporation, involving an expenditure of more than $100, shall be by contract founded on sealed bids, or on proposals made in compliance with public notice * * * and all such contracts when given shall be given to the lowest responsible bidder giving adequate…

(Reported below, 22 Hun, 106.) This action was brought against defendant, an auctioneer, to recover a sum alleged to have been unlawfully retained by Mm as commissions on sale of certain goods, and also the penalty fixed by the statute (1 R. S. 532, § 24) for demanding unlawful commissions.

This action was brought to recover for goods sold and delivered. The defense was a composition and discharge in bankruptcy. In reply plaintiff set up that the sale was induced by fraud. An order of arrest was issued in' the action upon affidavits averring the fraud in the contraction of the debt. The further material facts are stated in the opinion.

(Reported below, 25 Hun, 78.) This action was brought by plaintiff as receiver appointed in supplementary proceedings, based upon a judgment against defendants A. G. King and R. R. Hunt as the partners composing the firm of Charles Bellows & Co. The object of the action was to set aside an assignment of the firm assets made by said judgment debtor to defendant Cornell for the benefit of creditors, upon the ground that defendants A. C. Leach and W. J. Hinds were co-partners…

(Reported below, 15 J. & S. 470.) This action was brought to recover damages for the alleged breach of a contract for the delivery, by the firm of Hill, Cunningham & Co., composed of defendants, to Woolner Brothers, plaintiffs’ firm, of a quantity of alcohol. ■ . The contract was as follows: “ New York, Sept. 19, 1879. Sold for account of Messrs. Hill, Cunningham & Co. To Messrs.

The money belonged to the petitioner, and The City Bank of Rochester had no title to it. It was a mere collecting agent, acting in a fiduciary capacity, and receiving and holding the money of the petitioner for the purpose of remitting it. There, is no relationship of borrower and creditor in the matter. (Lindauer v. Fourth Nat. Bʼk, 55 Barb. 15; Dod v. Fourth Nat. B’k, 59 id. 265; Dickinson v. Mason, 47 id. 439; West v. Am. Ex.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 13, 1881, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. (Reported below, 25 Hun, 610.)</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>A surety is not to be held beyond the very precise stipulations of his contract. (Gates v. McKee, 13 N. Y. 237, Rochester City Bʼk v. Elwood, 21 id. 88, 90, 91.) The liability of the defendants is restricted to what is particularly and in form set out in the bond itself. (2 R. L. 126, § 1; Laws of 1872, chap. 788; National Mechanicsʼ Banking Association v. Conkling, New York Daily Reg., Nov. 20, 1882; 24 Hun, 497; Skellinger v. Yendes, 12 Wend. 306, Cornell v. Barnes, 7 Hill, 35.) An action cannot be maintained against a constable and his sureties, on his official bond, for a trespass committed by him in taking the goods of a stranger on an execution issued against the property of another person. The remedy in such case is by an action of trespass or trover against the officer personally, and against the plaintiff in the execution, if he be a party to the trespass. (Vanderworker v. Brown, 54 Md. 318; 25 Alb. L. J. 29; State v. Conover, 28 N. J. 224; Ward v. Stahl, 81 N. Y. 406; Nat. Mechsʼ. Bʼking Assocʼn v. Conkling, 24 Hun, 497, 498; 90 N. Y. 116.)</p> <p>The conduct of constables upon process from justices’ courts must be governed by the same law as that of sheriffs upon process of the higher courts when no statute intervenes. (Pixley v. Butts, 2 Cow. 421; Crocker on Sheriffs, § 1091.) Taking goods of a third person by an officer under an execution against the property of another is not a mere trespass in this State, but is held to be an act done virtute officii, for which his sureties are liable on his official bond. (People v. Schuyler, 4 Comst. 173; Bayley v. Bates, 8 Johns. 185; Curtiss v. Patterson, 8 Cow. 67.) The liability of the sureties is co-extensive with that of the constable. (Sloan v. Case, 10 Wend. 370; 4 Johns. 357; Fellows v. Gilman, 4 Wend. 414; Holiman v. Carroll, 27 Tex. 23.) Lucas and his sureties are liable on his official bond for his acts in making wrongful levy under the execution delivered to him for collection. (People v. Schuyler, 4 Comst. 173; Charles v. Haskins, 11 Iowa, 329; Strunk v. Ocheltree, id. 158; State v. Farmer, 21 Mo. 160.) The judgment recovered against the constable in the County Court is merely a liquidation of the damages sustained, and is not a bar to this action on his official bond. (Charles v. Haskins, 11 Iowa, 329; People v. Spraker, 18 Johns. 390.) The sureties cannot object that there was a want of compliance with the statute provisions. (Skellinger v. Yendes, 12 Wend. 306; Dutton v. Kelsey, 2 id. 615.) This action on the bond could be maintained. (Sloan v. Case, 10 Wend. 370; Dutton v. Kelsey, 2 id. 615; Fellows v. Gilman, 4 id. 414.) Any person to whom the constable has become liable, on account of an execution delivered to him for collection, is entitled to maintain a suit on his official bond. (People v. Holmes, 2 Wend. 281.) The payment over by the constable of the moneys collected on executions to the plaintiffs therein does not save a breach of the contract, and does not free the sureties. (Bayley v. Bates, 8 Johns. 185; Curtis v. Patterson, 8 Cow. 67.) The relator’s assignee of the judgment is entitled to maintain this action for his own benefit. (Bowdoin v. Coleman, 3 Abb. Pr. 431; Mackey v. Mackey, 43 Barb. 58; Thomas v. Hubbell, 35 N. Y. 120; Robinson v. Weeks, 6 How. Pr. 161; 5 Cow. 202; 2 Keyes, 260.)</p>

This was a motion to dismiss an appeal from a judgment of the General Term of the Court of Common Pleas of the city and county of New York, which affirmed a judgment in favor of plaintiff, entered upon an order granted January 16, 1882, setting aside defendant’s answer as improperly verified, and as sham and frivolous.

(Reported below, 29 Hun, 362.) The facts are sufficiently stated in the opinion. The Court of Appeals has jurisdiction in this ease. (Code, § 190; Tracy v. First Nat. Bk. of Selma, 37 N. Y. 524; Blossom v. Estes, 84 id. 617; Dunlop v. Patterson Fire Ins. Co., 74 id. 147.) Section 647 of the Code does not authorize any attachment of a stockholder’s interest in foreign corporations. (Christmas v. Biddle, 13 Penn. St. 223; Moore v. Gennett, 2 Tenn.

) The nature of the action and the material facts are stated in the opinion. Money paid into the county treasury becomes at once the money of the county. (1 R. S. [6th ed.] 893, § 139; Laws of 1877, chap. 436; Laws of 1879, chap. 447; Hill v. Supvʼrs Liv. Co., 12 N. Y. 52, 61; Newman v. Supv’rs Liv. Co., 45 id. 676, 686.) Plaintiff was not prevented from recovering in this action because the money had lost its identity.

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made October 28, 1881, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 25 Hun, 246.)</p> <p>The nature of the action and the material facts are, stated in the opinion.</p> <p>The contract between the Erie and Genesee Valley Railroad Company and the plaintiff was not ultra vires but fully authorized by the General Railroad Act of 1850 and its amendments. (Potter’s Dwarris on Statutes, 142, 145; People v. Stephens, 13 Hun, 17; Laws of 1855, chap. 302, § 1; Laws of 1867, chap. 254; Laws of 1869, chaps. 237, 844; 1 Kent’s Com. 463; President, etc., v. People, 9 Barb. 161—9; Rogers v. Bradshaw, 20 Johns. 735; McCartee v. Orphan Asylum, 9 Cow. 437; Rexford v. Knight, 15 Barb. 627; Waller v. Harris, 20 Wend. 555-562; U. S. v. Babbitt, 1 Black [U. S.], 61; Koning v. Bayard, 3 Wend. 258; Haight v. Holley, 10 id. 218; Rogers v. Kneeland, 20 id. 447; Gelpecke v. City of Dubugue, 1 Wall. 220-21; Dwarris on Statutes, 155, n. 5; 5 Beav. 581-2; Davis v. Fairborn, 3 How. [U. S.] 636, 644-5; 1 Paine’s U. S. C. R. 400, 405-6; Abbott v. Johnstown R. R. Co., 80 N. Y. 27, 30; Thomas v. R. R. Co., 101 U. S. 71, 83.) When a contract between corporations or between a corporation and an individual has been executed by one of the parties and not the other, the delinquent party cannot set up ultra vires as a defense. It is only when the contract remains executory on both sides that that defense is available. (Moss v. Rossie Mining Co., 5 Hill, 137; Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 258; Parish v. Wheeler, id. 494; Whitney Arms Co. v. Barlow, 13 id. 62; Oil Creek & All. R. R. Co. v. Penn. Trans. Co., 83 Penn. St. 160; Grant v. Henry C. Coal Co., 80 id. 208; Thompson v. Lambert, 44 Iowa, 236; Bradley v. Bullard, 55 Ill. 413; Trask v. Davis, 10 Cush. 252; Fuller v. Melrose, 1 Allen, 166; Alleghaney v. McClusken, 14 Penn. St. 81; O. & M. R. R. Co. v. McCarthy, 17 Abb. L. J. 194; Mutual Life Ins. Co. v. Wilcox, id. 426; Arnot v. Erie Rʼy Co., 67 N. Y. 315; Buffett v. T. & B. R. R. Co., 40 id. 168; Fished v. N. Y. C. & H. R. R. R. Co., 46 id. 644; Remsen v. Graves, 41 id. 471; Olcott v. Tioga R. R. Co., 27 id. 546; Castle v. Lewis, 78 id. 134-6; Kent v. Quicksilver Mining Co., id. 183-4-5-7.) Where a contract contains an express covenant to pay a debt for which a plaintiff is liable, an action may be maintained, upon a failure of the defendant to pay, without first paying the debt. (In re Negus, 7 Wend. 499, 502; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Denio, 321, 325; Rawson v. Copland, 2 Sandf. Ch. 251, 254-5; Cady v. Allen, 22 Barb. 388, 395; Gilbert v. Wiman, 3 N. Y. 350, 553; Trinity Church v. Higgins, 48 id. 532, 535; Seligman v. Dudley, 14 Hun, 186, 189; Farnsworth v. Boardman, Sup. Ct. [Mass.]; Marsh v. Pike, 10 Paige, 595; 24 Alb. L. J. 517.)</p> <p>The lease or transfer by the Erie and Genesee Valley Railroad Company of its railroad, franchises and rights to the plaintiff was an abandonment of its corporate functions, and rendered it incapable of performing its duties to the public, and being without legislative authority, against public policy, and in violation of the statutes, was, therefore, illegal and void. (Abbott v. Johnstown, etc., R. R. Co., 80 N. Y. 27; Thomas v. R. R. Co., 101 U. S. 71; People v. A. & V. R. R. Co., 77 N. Y. 232; Troy & B. R. R. Co. v. B. H. T. & W. R. Co., 86 id. 107; R. R. Co. v. R. R. Co., 115 Mass. 347; Coe v. R. R. Co., 10 Ohio St. 372; Black v. Canal Co., 22 N. J. Eq. 130; Beman v. Bufford, 6 Eng. L. & Eq. 106; R’y Co. v. Rʼy Cb.o 12 id. 224; Winch. v. R. R. Co., 13 id. 506; R. R. Co. v. R. R. Co., 4 DeG. & J. 362; Thomas v. R. R. Co., 101 17. 79. 71, 79, 83.) The agreement between the plaintiff and the Erie Railway Company was illegal, ultra vires and void, and the Erie railway was not bound by its covenants. It had no corporate power to bind itself to pay the bonded debt of the Erie and Genesee Valley Railroad Company, or to build or operate a railroad beyond its corporate limits. (T. & R. R. Co. v. R., etc., Co., 86 N. Y. 107; O. & L. R. R. Co. v. R. R. Co., 63 id. 176, 180; Day v. N. Y. Central, 51 id. 583; R. R. Co. v. R. R. Co., 63 id. 180; Gillett v. Maynard, 5 Johns. 85; King v. Brown, 2 Hill, 485; Cook v. Daggett, 2 Allen, 439; Erben v. Lorillard, 19 N. Y. 299; Richards v. Allen, 17 Me. 296; 2 Madd. Ch. Pr. 243, 244; Kerr on Receivers, 195, 196; Neute v. Link, 15 Simons, 450; 3 McN. & G. 476; Davenport v. A. & C. R. Co., 2 Woods, 519; 20 Ohio St. 137.) The railway company and Mr. Jewett, its receiver, are not estopped from asserting the illegality of the agreements between the plaintiff and the Erie and Genesee Valley Railroad Company, and the plaintiff and the Erie Railway Company, upon which this action is brought. (Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 258; Whitney Arms Co. v. Barlow, 63 id. 62; Mad. Ave. Bapʼt Ch. v. Oliver St. Bapʼt Ch., 73 id. 82; Pierce on Railroads [2d ed.], 511, 514, 515; Thomas v. R. R. Co., 101 U. S. 83; Knowlton v. C. & E. Spring Co., 57 N. Y. 518; Kent v. Quicksilver Mining Co., 78 id. 185, 186; Curtis v. Levitt, 15 id. 9; Tracey v. Talmadge, 14 id. 162; Day v. N. Y. C., 51 id. 583, 590; Shapley v. Abbott, 42 id. 443; Barker v. Union L. Ins. Co., 43 id. 283; N. Y. & M. R. Co. v. Van Horn, 57 id. 473; Shapley v. Abbott, 42 id. 443; Odell v. Montrose, 68 id. 499; Becker v. Hallgarten, 86 id. 167; Andrews v. Ætna Co., 85 id. 334; Trenton B’k Co. v. Duncan, 86 id. 221; Woodhull v. Rosenthal, 61 id. 382.) In equity neither the holders of the coupons nor Woodruff have any preference over the other creditors of the Erie Bailway Company, upon the theory that their payment is a payment by the receiver of the running expenses of the road, or for the benefit of the mortgaged property, as assignee of a lease, or otherwise. (Hoyt v. Stoddard, 2 Allen, 442; McAdam on Landlord and Tenant, 325, 326; Jones on Railroad Securities, §§ 539-544; Wallace v. Loomis, 97 U. S. 146; Miltenberger v. Logansport R. Co., 106 id. 286,309, 310, 313; Slausson v. Watkins, 86 N. Y. 597.) The doctrines relative to principal and surety have no application to this case. (4 Kent, 95; Taylor’s Landlord and Tenant, § 437; Jones on Railroad Securities, §§ 330, 337; Daniels on Negotiable Securities, 424; Gibbs v. Menard, 6 Paige, 260; Slausson v. Watkins, 86 N. Y. 597.)</p>

This was an appeal from a judgment of the General Term of the Supreme Court, affirming a decision of the Board of Audit refusing to allow a claim against the State for an award of the Canal Commissioners. It is not reported, as a majority of the court did not concur in the opinion.