Volume 94 — New York Reports

The nature of the action and the material facts are stated in the opinion. Defendants’ liability to plaintiff can arise in this action only from the fact that she was a traveler or passenger.

(Mem. of decision below, 28 Hun, 438.) Tins action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The owners of certain lands in the city of Troy, had laid them out into city lots, streets and alleys; lots had been sold and some of the streets had been worked by the city. Plaintiff was struck by a car attached to a train moving backward on defendant’s road at a point where said road crossed an alley so laid out.

> The complaint stated that the plaintiffs were lawyers, and set forth, in substance, two causes of action : First. Held: as matter of law, that the giving of consent by the plaintiffs, whereby the order theretofore obtained by the defendant (plaintiff m the Baird suit) was set aside, was wrongful, and the defendant entitled to recover from them his damages sustained thereby, and those damages he assessed at six cents.

<p>Where two causes of action upon contract are joined in the same action a demurrer to the complaint, upon the ground that all of the defendants are not affected by both causes, lies at the instance of a defendant who is so affected. The objection is not to the misjoinder of parties, but of causes of action, and so the rule that a defendant against whom a good cause of action is pleaded may not demur because too many are joined does not apply.</p>

<p>Where, by the charter of a municipal corporation, it had power to repair streets and sidewalks and “ to prevent the incumbering or obstructing the same in any manner,” held, that it was liable for injuries occasioned by an omission on its part to repair or remove a sidewalk constructed without its authority, which had been, for a sufficient length of time to charge it with notice, in so defective a condition as to be dangerous for travel.</p>

(Reported below, 15 J. & S. 441.) The nature of the action and the material facts are stated in the opinion. In the éxecution issued on the Arnold judgment the teste and the direction to return to the office of the clerk of the city and county of New York were mere surplusage.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made at the December term, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This was an action for libel. The material averments of the complaint are as follows:</p> <p>“ Third. — That on the said 12th day of March, the defendant, being the editor and publisher of said New York Timps, a newspaper having a large circulation in the States of New York and New Jersey, and throughout the United States, as this plaintiff is informed and believes, maliciously composed and published of and concerning this plaintiff, in said newspaper, the false and defamatory article and matter following, to-wit:</p> <p>‘ The gossips of Guttenberg, N. J., are excited over a mystery which has developed in their midst. The scene of the mystery is a little two-story frame building on Fifth street near Herman avenue. Rudolph Bergmann owns the structure. In the front part he keeps a small grocery store. The rear rooms he occupies as sleeping and eating-rooms. His habits are miserly, and his wife, who left him some time ago, is said to have left because of the meagerness of his supplies, and he now lives 'by himself, with none to share his joys and sorrows. The upper part of the building is occupied by a German tenant, who confesses that he hals always looked on Mr. Bergmann with suspicion. Beneath the building is a noisome cellar. It is always covered with about two feet of water, and having been the depository of all the rubbish of the store and dwelling-house, has for some time emitted the most noxious vapors. Two or three months ago the cow of one of Ms neighbors died, and the carcass lay for seven days unburied. It was fast becoming a mass of corruption, when Bergmann, impelled by some motive not understood, cut it into pieces and cast the fragments into the cellar. The tenant says that at the same time the putrid carcass was thrown into the cellar, he heard a noise as of a man splashing around in the water in the cellar. It was the dead of night when these noises aroused him, and on making further observations, he saw Bergmann cut away the cellar stairs so as to prevent descent into it and bolt down the hatchway. Convinced that the body of a man had been cast into the cellar, and that the carcass of the cow had been thrown in so as to confuse any who might search the place, the tenant told his story to Justice Schmidt. The justice and constable W alicer visited the house. The cellar stairs were indeed gone, and the constable found it necessary to make his way into the flooded cellar with a ladder. The stench was overpowering, but he walked around in the water almost up to his knees till he had learned enough to convince him that there was reasonable ground for the tenant’s suspicion. He says that while feeling around in the water, his hand came in contact with what he believes to have been a human arm, and afterwai’d with teeth, which he judges were those of a human being. Why he did not bring them out in the light of day does not appear. The matter was brought to the notice of the town committee and an investigation will be made. Bergmann’s neighbors now recall the fact that a year ago a man who boarded with Bergmann strangely disappeared, and a few days later his grocery was replenished with a new stock, thereby meaning and intending to accuse the plaintiff of the crime of murder, or of being accessory thereto, and meaning, and intending to have it understood . and believed that the plaintiff had been guilty of the crime of murder, and had murdered and concealed a man in his, the plaintiff’s cellar, or that the jflaintiff was accessory to such crime and guilty as such, and meaning and intending to accuse the plaintiff of, and to have it understood and believed that he was guilty of a great and infamous crime, and meaning, and intending to accuse the plaintiff of odious and disgraceful conduct, and thereby injure and destroy his character and bring him into disrepute and disgrace. •</p> <p>Fourth. — That said article and matter so as aforesaid published, so far as it accused, charged or insinuated that this plaintiff had been, or was guilty of the crime of murder, or of any other crime, "is utterly false and defamatory, and all such statements and insinuations therein contained to that effect, and all the statements and insinuations reflecting upon the character or conduct of this plaintiff to the effect that he had been guilty of odious, disreputable or disgraceful acts or conduct, are in like manner false and defamatory.</p> <p>Fifth —• That plaintiff has always been a good and worthy citizen and was never guilty of any of the criminal, infamous or disgraceful acts which are charged, stated or insinuated in the said libelous article, and had enjoyed the respect, confidence and esteem of the community where he lived and wherever he was known. That by reason of the composition and publication of the matter aforesaid in such newspaper, the plaintiff has been brought into disrepute and disgrace and has suffered in his good name and reputation, so much so, that he is accosted and insulted in the streets by allusions to this defamatory matter, and has suffered and still suffers thereby.</p> <p>Sixth. — That by means of said publication, the plaintiff has been greatly injured m his reputation to his damage $20,000.</p> <p>Seventh. — That by means of said publication, the plaintiff has also been greatly in jured in and about his business as a merchant by the loss of good-will and patronage, and suffered pecuniary loss thereby, to-wit: to the amount of 85,000.”</p> <p>The facts, so far as pertinent to the questions discussed, are stated in the opinion.</p> <p>In an action for libel, a party claiming for loss of patronage must set out in his complaint the names of the persons whose patronage he lost. (Shipman v. Burrows, Hall, 399, 411, 412, 419, 420; Hallock v. Miller, 2 Barb. 630; 2 Phil. Ev. 248; Hartley v. Herring, 8 Term R. 133; Tilk v. Parsons, 2 C. & P. 201; Tobias v. Harland, 4 Wend. 537; Linden v. Graham, 1 Duer, 670; Havemeyer v. Fuller, 60 How. Pr. 316, 322; Kendall v. Stone, 5 N. Y. 14; Knickerbocker L. Ins. Co. v. Ecclesine, 34 Supr. Ct. 76; Jutte v. Hughes, 67 N. Y. 267; Stafenhorst v. Am. Manuf. Co., 46 How. Pr. 510; Herrick v. Latham, 10 Term R. 281.) To entitle a party to recover special damages they must appear to be the legal and natural consequence of the wrongful act charged. (Crain v. Petrie, 6 Hill, 522; Hastings v. Palmer, 20 Wend. 225, 226; Olmstead v. Brown, 12 Barb. 657, 662; Beach v. Ranney, 2 Hill, 314; Terwilliger v. Wands, 17 N. Y. 54, 57; Schille v. Brokhans, 80 id. 614; Masterton v. Village of Mt. Vernon, 58 id. 391; Church v. Howard, 79 id. 415, 423.) If the meaning of the words in an alleged libel is ambiguous, or the sense in which they were used is uncertain, and they are capable of both an innocent and an injurious interpretation, it is for the jury to determine, upon all the circumstances, in what sense they were used. (Sanderson v. Coldwell, 45 N. Y 398, 402, 403; Lewis v. Chapman, 16 id. 369; Snyder v. Andrews, 6 Barb. 43; Edsall v. Brooks, 3 Robt. 294; Dalloway v. Terrell, 26 Wend. 388; Townshend on Slander and Libel, § 338; Maguire v. Knox, 5 Irish Com. L. 408.) The court erred in .charging the jury that it was in the discretion of the jury to give the plaintiff exemplary damages. (Sanders v. Evening Mail Ass’n, 9 Hun, 288, 294, 295; Taylor v. Church, 8 N. Y. 452, 460; 1 E. D. Smith, 292; Bennett v. Smith, 23 Hun, 50, 53; Hamilton v. Eno, 81 N. Y. 116, 127; Fry v. Bennett, 4 Duer, 257; Hun v. Bennett, 4 E. D. Smith,. 659.)</p> <p>The article complained of is libelous per se. (Townshend on Slander and Libel [3d ed.], 262, § 176; Starkie on Slander [Wend.] 169; 2 Addison on Torts [Wood’s ed.], 307,311; Cooper v. Greeley, 1 Denio, 359; Cramer v. Riggs, 17 Wend. 209; Moore v. Bennett, 48 N. Y. 472, 477; Edsall v. Brooks, 26 How. Pr. 431.) The article, being libelous per se, is therefore actionable per se, and no proof of actual malice or of damage is required. Both malice and damage are implied. (2 Add. on Torts [Wood’s ed.], 311, § 1090; Rout v. King, 4 Wend. 114, 136; 7 Cow. 613; Gillman v. Lowell, 8 Wend. 578; Sanderson v. Caldwell, 45 N. Y. 398; Terwilliger v. Wands, 17 id. 49, 54; King v. Cale, 7 Cow. 613, 620; Darry v. People, 10 N. Y. 138; Viele v. Gray, 10 Abb. Pr. 7; Fry v. Bennett, 4 Duer, 247; Howard v. Sexton, 4 N. Y. 157.) The jury in this case had the right to give exemplary or vindictive damages in addition to the actual damages sustained by plaintiff. (Samuels v. Evening Mail Ass’n, 75 N. Y. 604; King v. Root, 4 Wend. 139; Taylor v. Church, 8 N. Y. 461; Tillotson v. Chatham, 3 Johns. 56.) Plaintiff having alleged injury to his business, in his complaint, evidence tending to prove such allegation was properly admitted. (Terwilliger v. Wands, 17 N. Y. 60.) The evidence offered relating to what occurred before some pretended public body in New Jersey was properly rejected. (2 Addison on Torts [Wood’s ed.], 336, § 1107; Townshend on Slander and Libel, 398, § 228; Hasmer v. Lovland, 19 Barb. 116; Perkins v. Mitchell, 31 id. 461; Cobman v. Southwick, 9 Johns. 49; Woodward v. Paine, 15 id. 493; Wilson v. Boerum, id. 286; Powell v. Walters, 17 id. 176; Van Ness v. Hamilton, 19 id. 368; Fry v. Bennett, 5 Sandf. 68-75; Andrews v. Vanduzer, 11 Johns. 349; Daly v. Byrne, 1 Abb. N. C. 160; Hayes v. Tibbetts, 2 Abb. [N. S.] 97, 102; Bush v. Prusser, 16 N. Y. 361; Hutchkiss v. Oliphant, 2 Hill, 510; Dale v. Lyon, 10 Johns. 447.) An injury to a person’s good name, good-will of business, or reputation is an injury to property. (Samuels v. Evening Mail Ass’n, 75 N. Y. 604; Shoe and Leather B’k v. Thompson, 18 Abb. Pr. 413; Knickerbocker L. Ins. Co. v. Ecclesine, 34 Sup. Ct. 97, 106; Seeley v. Engell, 13 N. Y. 548; 6 Bosw. 181; Masterton v. Village of Mt. Vernon, 58 N. Y. 395, 396.)</p>

<p>The real owner of personal property is only estopped from asserting his title to it when and so far as he has allowed another to have the appearance of ownership.</p> <p>H. M. Cutter & Co., cotton brokers, falsely and fraudulently represented to plaintiffs that they had orders from the F. M. Co. to purchase for it one hundred bales of cotton, and relying thereon, plaintiffs contracted to sell that quantity to the corporation named. Bought and sold notes in the usual form were delivered by plaintiff’s brokers, in which the sale was stated to have been made to said corporation. The notes contained the following : “ Payment guaranteed by H. M. Cutter & Co. Bill to H. M. Cutter & Co.” No bill, warehouse receipt or other muniment of title was in fact delivered to Cutter & Co. The cotton was delivered to that firm to be delivered to the supposed purchaser; they placed it j in a warehouse, obtained advances upon the warehouse, receipts, and^y it was subsequently sold to bona fide purchasers. /In an action to recover possession of a portion of the cotton, held, that the transaction, by means of which Cutter & Co. obtained possession, was a larceny; that the words “Bill to H. M. Cutter & Co.” amounted merely to a memorandum, and taken with the rest of the contract imported that when the bill was made out to the purchaser named, it was to be sent to Cutter & Co.; and that as plaintiffs had delivered to that firm no symbol of property, or indicium^of title giving an appearance of ownership, they were not estopped from asserting their title and were entitled to recover. _/</p>

This was an action for an accounting. The complaint alleged in substance that an agreement was made in September, 1878, between the plaintiff and defendant Brooks for a joint purchase of a lot of securities then held by one Potter, the executor of Ward; that the defendant Brooks had the sole management of the purchase; that the plaintiff, in the first instance, advanced nearly the whole of the purchase-money ; that the plaintiff has no knowledge of the precise facts as to…

(Reported below, 26 Hun, 209.) This action was brought to obtain a judgment reviving a mortgage upon certain premises formerly owned by defendant Wooster Sherman, subrogating plaintiff to the rights of the mortgagee, and for a foreclosure of said mortgage.

This action was brought to foreclose a mortgage executed by defendant Murphy. The mortgagor, in 1863 and after the execution of the mortgage, conveyed a portion of the mortgaged premises to defendants Beck and Tucker.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made January 7, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The complaint in this action contained two counts, one for false imprisonment, the other for malicious prosecution.</p> <p>The facts appearing are substantially as follows:</p> <p>In the evening of October 29, 1880, a person called at the defendant’s residence in Hew York city, stating that there had been an accidental explosion at the Eepauna Chemical Works in Hew Jersey, whereof the defendant was a director; that he had been sent as messenger to notify him of this by one Apollonio, the manager, who, in the excitement of the moment, had neglected to provide him with money for expenses; that he had not sufficient money to return home; and upon his request defendant gave him $5. On Hovember 1, the defendant received a telegram from Apollonio, saying no accident had occurred. The following day Apollonio came to Hew York, and informed defendant, after hearing a description of the person, that it described exactly the plaintiff. On Hovember 3 the plaintiff was arrested by a detective without a warrant, and at defendant’s request he was confined at the police station until Hovember 6, when he was discharged without any examination. The police court record is: “ Dis. on the evidence, as there was a mistake in the identity; ” which was signed by defendant. This result came from the statement of a fellow clerk of the plaintiff in the employ of Williams, Black & Co., that at the time when the interview was had by defendant at his residence with the pretended messenger the plaintiff was at work in the firm’s office.</p> <p>The jury found for plaintiff as to the first cause of action, and for the defendant as to the second. The further material facts appear in the opinion.</p> <p>Where a felony has in fact been committed, and there was reasonable ground to suspect the person arrested, a warrant is not necessary to justify the arrest. (1 Hale’s P. C. 5,888; 2 Coke’s Inst. 51; 1 Chitty’s Cr. L. 15; 3 Barb. Cr. L. [2d ed.] 550; Samuel v. Payne, Douglas, 359; Beckwith v. Philby, 6 B. & C. 635; Haley v. Mix, 3 Wend. 350; Farnam v. Feeley, 56 N. Y. 451.) The talcing with felonious intent, and the trespass in wrongfully converting the property of another are two of the distinctive characteristics of larceny. (People v. Call, 1 Denio, 122; Hildebrand v. People, 56 N. Y. 393; Regina v. McKall, 11 Cox’s C. C. 32; Rex v. Murray, 1 Moody’s C. C. 276; Smith v. People, 53 N. Y. 113; Loomis v. People, 67 id. 327.) Even where the motley is voluntarily delivered to the wrongdoer in faith that he, himself, will return it, and thus some credit is placed upon his personal responsibility, it is larceny. (Loomis v. People, 67 N. Y. 327; Regina v. Horner, 1 Leach, 305; Rex v. Robson, R. & R. C. C. 413.) If money or property is delivered by the owner to a person for mere custody, or charge, or for some specific purpose, the legal possession remains in the owner, and a criminal conversion of' it by the custodian is larceny. (People v. McDonald, 43 N. Y. 64; Justices v. People, ex rel. Henderson, 90 id. 12; Whart. Cr. Law [6th ed.], § 813; Collins v. Ralli, 20 Hun, 246; 85 N. Y. 637; Zink v. People, 6 Abb. N. C. 424, note 413-14; Ward v. People, 3 Hill, 398.) To take the offense out of the definition of larceny, it is necessary that the owner should have consented “ to part with the property and not the naked possession for a special purpose.” (Bassett v. Spofford, 45 N. Y. 391; Weyman v. People, 4 Hun, 311; 6 N. Y. Sup. Ct. 698; 62 N. Y. 623.) He must have parted with possession of his property with intent to pass the title to the wrong-doer. (Barnard v. Campbell, 58 N. Y. 76.) Petit larceny was a felony at common law. (4 Blackst. Com. 99; 1 Hawk. P. C. chap. 33, § 4; 1 Hall’s P. C. 43; People v. Finn, 26 Hun, 59.) Prior to the time this money was taken, no statute of this State had changed the character of the offense. (People v. Finn, 26 Hun, 59; Ward v. People, 3 Hill, 395; Carpenter v. Nixon, 5 id. 262.) The Eevised Statutes do not assume “ to define the meaning of the term ‘ felony ’ ’’"except when used in a statute. (Fassett v. Smith, 23 N. Y. 257.) The common-law rule that petit larceny is a felony has not been changed by the Eevised Statutes, and it remains in force as to all questions controlled solely by the common law. (People v. McArdle, 1 Wheeler’s Cr. Cas. 101; People v. Adler, 3 Park. Cr. L. 249.) The question of probable cause or reasonable ground for suspicion, whether it arises in actions for malicious prosecution or false imprisonment, is one of law, unless the evidence out of which it arises is conflicting. (Burns v. Erben, 40 N. Y. 466; Bulkley v. Keteltas, 6 id. 387; Heyne v. Blair, 62 id. 22; Thaule v. Krekeler, 81 id. 428; Wallace v. Mayor, etc., 9 Abb. 44; Erben v. Lorillard, 19 N. Y. 302-3; Arthur v. Griswold, 55 id. 408.) Even if the arrest, without a warrant, gave plaintiff a technical cause of action, no punitive damages were recoverable. (Wallace v. Mayor, 9 Abb. 44; Taylor v. Church, 8 N. Y. 457-460; Littlejohn v. Greeley, 13 Abb. 57; Williams v. Garrett, 12 How. 457.)</p> <p>Obtaining money by false pretenses does not constitute a felony. (3 R. S. [Banks’ 6th ed.] 948; Ranney v. People, 22 N. Y. 413, 416-17; 2 R. S. 1677, § 53; 2 Edm. 697; Shay v. People, 22 N. Y. 317; Fassett v. Smith, 23 id. 252; Mowrey v. Walsh, 8 Cow. 238; People v. Park, 41 N. Y. 24; Loomis v. People, 67 id. 322, 326, 329.) No felony having been committed, the arrest of plaintiff by defendant, or through his procurement, without a warrant, was illegal, and furnished a good cause of action for false imprisonment, without regard to the questions of probable cause or reasonable ground for suspicion against plaintiff; and the court committed no error in holding that the only question for the jury on the first cause of action was one of damages. (Burns v. Erben, 40 N. Y. 463, 466, 468; Meyer v. Clark, 41 N. Y. Supr. Ct. 107; People v. Pratt, 22 Hun, 300, 301.) The court will not set aside a verdict on the ground that the damages are excessive unless it is convinced that they are. (Coleman v. Southwick, 9 Johns. 45; Gale v. N. Y. C., etc., R. R. Co., 13 Hun, 1; Bierbauer v. N. Y. C., etc., R. R. Co., 15 id. 559.) It was discretionary with the judge below whether to grant or refuse a new trial on this ground. (Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415; Litchut v. Treadwell, 18 Alb. L. J. 39.) Although the General Term has power to review such discretion, still it will not interfere therewith unless it clearly appears to have been arbi trarily exercised. (Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415.) This court cannot review the question of excessive damages. (Metcalf v. Baker, 57 N. Y. 662; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 594; Oldfield v. N. Y. & H. R. R. Co., 14 id. 310, 319, 321; Young v. Dows, 30 id. 134; Van Schaick v. Third Ave. R. R. Co., 38 id. 353; Ostrander v. Fellows, 39 id. 350; Standard Oil Co. v. Amazon Ins. Co.,.79 id. 510.)</p>

<p>These are appeals, one in each of the actions above entitled. In the first action the appeal is from an order of the General Term of the Supreme Court, in the second judicial department, made December 12, 1881, which affirmed an order of Special Term, directing that upon payment by defendant, Ryerson, of the amount due upon the bond and the mortgage, to foreclose which the action was brought, and of the foreclosure costs, plaintiff assign said bond, mortgage and judgment to Ryerson, and that the latter be subrogated to all the rights of the plaintiff. The appeal in the action secondly above entitled is from a judgment of said General Term, entered upon an order made December 12, 1881, which affirmed a judgment in favor of the plaintiff, entered upon a decision of the court on trial at Special Term. The judgment gave substantially the same right of subrogation as was given by the order.</p> <p>Upon the first application for the order it was denied without prejudice to the right of Ryerson to bring an action to obtain the relief sought. The action in his behalf was thereupon commenced. Afterward a reargument of the motion was directed, and upon the reargument the motion was granted, the order declaring that nothing therein contained should prejudice or affect the action.</p> <p>The material facts are stated in the opinion.</p> <p>Where the senior and junior liens are not co-extensive, equity requires the senior to dispose first of the fund not covered by the junior lien, and to resort only to the fund of the latter in case of a deficiency. (Lanay v. Athol, 2 Atk. 446; Gibson v. Seagrim, 20 Beav. 614; N. Y. & N. J. Steamboat Co. v. Jersey Co., Hopkins’ Ch. 522.) Where it works an injustice to the senior incumbrancer, the court will not direct subrogation, or direct a sale in the inverse order of alienation. (Sheldon on Subrogation, 69; Woolcocks v. Hart, 1 Paige, 185; Herriman v. Skillman, 33 Barb. 378.) The rule requiring the holder of a lien on two funds, where another party has a lien on one only, to exhaust his remedy first against the fund upon which there is only one lien, must be applied even where the fund upon which the single lien rests is, in whole or in part, in another State. (N. Y. & N. J. Steamboat Co. v. Jersey Co., Hopkins’ Ch. 525-532.) The appellant’s rights under his second and third mortgages are the same as if Jeffers had made them to a stranger, and the stranger were now asserting them. (Cornell v. Woodruff, 77 N. Y. 203; Ten Eyck v. Craig, 62 id. 421.) A person claiming subrogation must have superior equities. (Harrisburg B’k v. German, 3 Penn. 300; 2 Bouv. Law Dict. 555.) Subrogation has never been granted where it interferes with the rights of others. (Banto v. Garmo, 1 Sandf. Ch. 383.) Nor where it interferes with equities of the creditor against whom it is claimed. (Grubbs v. Wysor, 21 Alb. L. J. 517.) The tender was insufficient as it included only the amount- due on the first mortgage and the costs of the New York suit. (Enright v. Hubbard, 34 Conn. 197.) The recording of the deed in New York did not affect the rank or lien of the second mortgage as such in New Jersey. The recording acts are State laws, and, as such, have no extra-territorial force. (W. U. Tel. Co. v. Kilderhouse, 87 N. Y. 430; Van Voorhis v. Brintnall, 86 id. 18-29.) To entitle one creditor to be subrogated to the right of another creditor, the former must have satisfied the latter his demand in full, so as to relieve him of trouble, expense and work. (Carter v. Neal, 24 Ga. 346; Sheldon on Subrogation, 75.) Welling’s second mortgage was, as to New York lands, a lien prior to the Ryerson deeds, for the latter were not properly acknowledged, and were not entitled to record. (Fryer v. Rockefeller, 63 N. Y. 268; Miller v. Link, 2 T. & C. 86; 3 R. S. [7th ed.] 2217, § 9; id. 2218, § 15.) Public policy and the provisions of the statute require that no instrument affecting realty should be recorded unless the officer certifies either that he knows the party, or is satisfied by evidence. The court will take judicial notice of the fact. (Troup v. Haight, Hopkins’ Ch. 305; Fryer v. Rockefeller, 63 N. Y. 273; Jackson v. Gumaer, 2 Cow. 552; Duval v. Cowenhoven, 4 Wend. 561; Merriam v. Harsen, 4 Edw. Ch. 70; West Point Iron Co. v. Reymert, 45 N. Y. 703; Canandaigua Academy v. McKechnie, 19 Hun, 62; Jackson v. Livingstone, 6 Johns. 149; Ritter v. Worth, 58 N. Y. 627.)</p> <p>The defendant was entitled to redeem his land, and after paying plaintiff’s debts, to have an assignment of and be subrogated to all the rights of plaintiff under his first mortgage. (Hayes v. Ward, 4 Johns. Ch. 123; Matthews v. Aikin, 1 N. Y. 595; Edson v. Dillaye, 17 id. 158; Barnes v. Mott, 64 id. 397; Cole v. Malcolm, 66 id. 363; Frost v. Yonkers S’v’gs B’k, 70 id. 553; Twonibly v. Cassidy, 21 Hun, 277; Averill v. Taylor, 8 N. Y. 44.) The fact that the other mortgages were given after the deed to defendant, and are not liens upon his land, can in no way affect the defendant’s right to redeem or be subrogated. (McLean v. Tompkins, 18 Abb. 24; Nat. B’k of Lansingburgh v. Silliman, 65 N. Y. 475.) In order that a decision should become res adjudícala, so as to be a bar to a subsequent proceeding or action, it must be shown, by the party insisting upon such decision, that the record of the former suit includes the matters alleged to have been determined. (Campbell v. Butts, 3 N. Y. 173; Boon v. Moss, 70 id. 465.) Under the circumstances the order appealed from was no bar to this action. The plaintiff had the right to commence such an action instead of making a motion in the original action. (Johnson v. Zink, 51 N. Y. 333.) Plaintiff having alleged the due acknowledgment of the deeds, and defendant not having denied it, that fact is to be taken as true in this action. (Code, § 522; Meeker v. Wright, 76 N. Y. 262.) That these deeds were duly acknowledged is res adjudicata between these parties. (Demarest v. Darg, 32 N. Y. 281; Kingsland v. Spalding, 3 Barb. Ch. 341.) It is not necessary that the acknowledgment should follow the exact language of the statute, so long as it substantially complies with its requirements. (Jackson v. Livingston, 6 Johns. 149; Ritter v. Worth, 58 N. Y. 627.) The fact that the deed of Byerson to the respondent was not recorded until after the defendant’s subsequent mortgages had been, does not affect the question in issue here. (Frost v. Yonkers S’v’gs B’k, 70 N. Y. 552; Vandercook v. Cohoes S’v’gs Inst., 5 Hun, 641; Hooker V. Pierce, 2 Hill, 650; Wood v. Chapin, 13 N. Y. 509; Greene v. Deal, 4 Hun, 703; Page v. Waring, 76 N. Y. 463.)</p>

<p>Three persons, who had jointly indorsed the notes of a manufacturing corporation, entered into a written agreement with each other to the effect o that if the corporation should fail to pay said notes at maturity they would each pay one-third of the amount unpaid, and in case of failure of either to pay his proportion, and either of the others should pay more than his share, the one so paying should “ have and recover from the one so failing an amount equal to his aliquot part.” It was also agreed that each of the parties should execute, to á trustee named, a mortgage as security for the performance of Ms agreement; and it was provided that in case of failure of one of the parties to pay his share of the unpaid paper, “and which either of the parties shall have paid in whole or in part, then and in that.case the said trustee is empowered, and it shall he his duty, at the request of the parties so having paid, to foreclose the mortgage made by the party ” so failing to pay. Mortgages were executed as required ; each stated that it was given to secure the payment of $25,-000, according to the conditions of the agreement. The corporation made default in the payment of certain of the notes- In an action brought by the trustee and the holders of certain of said, notes to foreclose one of the mortgages, it was shown that the corporation and the indorsers were insolvent, and that nothing had been paid upon said notes by any of the parties. Held, that the trust was not created for the benefit of the creditors, but solely for that of the parties to the agreement; that it imposed no primary liability upon the latter ; and that the holders of the notes were not entitled to be subrogated to the rights of the indorsers in the securities; also that the action could not be maintained, as there had been no breach of the condition of the agreement, authorizing a foreclosure, as neither of the other parties thereto had paid any portion of the sum which the mortgagor was thereby bound to pay.</p> <p>Also held, that one who had purchased the mortgaged premises upon foreclosure of a j unior mortgage, executed by the same mortgagor, the foreclosure suit having been brought prior to the adoption of the last seven chapters of the Code of Civil Procedure, succeeded to the rights of the mortgagor (2 E. S. 192, § 158), and was entitled to come in and defend.</p>

A mem. of the decision below appears in 26 Hun, 380. This action was brought to recover damages for the diversion of water and to restrain the defendant from the further diversion thereof. The ease contained simply the findings of the referee, from which the following facts appear: The Susquehanna river is a public highway under the statutes of this State, and has been so, at least, since 1813.

The action was commenced November 1, 1878, for the foreclosure of a mortgage. The complaint states that the defendant Cudlipp, for the purpose of securing the payment to Daniel and Elias Herbert of the sum of $4,000, on the 16th of December, 1875, executed and delivered to them a bond and mortgage conditioned for the payment of that sum in two-ye^rs thereafter, with interest, and they, by assignment bearing the same date, duly assigned and transferred them to the plaintiff.

Appeal by the defendants, Charles N. J. DToelke and Jacob' Marks, from a judgment of the General Term, in the First Department, of March, 1883, which affirmed a conviction of defendants in the General Sessions of New York city and county, of a violation of the lottery laws of this state. The facts and points of counsel fully appear in the report of this case at General Term, ante, p. 252.

(Reported below, 25 Hun, 136.) The nature of the action and the material facts are stated in the opinion. It was a condition precedent to the taking effect of the lease that it was to be signed by all those whose names were in the instrument, and who were the officers of the society. It not having been so executed, it is not binding upon those who did sign.

This action was brought by the commissioner of highways of the town of Eoyalton, Niagara county, against the commissioner of highways of the town of Hartland in said county, to recover one-half the expense of rebuilding a bridge. The material facts are stated in the opinion. When two or more towns are required to build and maintain a bridge, such bridge should be built and maintained at their joint expense, without reference to the town lines or the part located in either.

(Mem. of decision below, 25 Hun, 640.) The nature of the action and the material facts are stated in the opinion. The mortgage executed by the Connecticut Western Railroad Company was void when executed and delivered, because it was not executed as by law required.

(Reported below, 16 J. & S. 46.) This action was brought by plaintiff, as assignee of the Mastín Bank of Kansas City, Missouri, to recover an alleged balance to its credit at the time of the assignment of a deposit account with the firm of Donne], Lawson & Co., of which firm defendants are the individual members. The material facts are stated in the opinion.

The relator, on and prior to February 8, 1873, was surgeon of police; on that day, by a resolution of said board, he was dismissed from the force and retired on a pension. On the 29th day of June, 1875, the said board passed a resolution discontinuing the pension and he was dropped from the rolls. Mandamus is the proper remedy. (People, ex rel. Debennetti, v. Clerk of Marine Court, 3 Abb. Ct. of App. Dec. 491; People, ex rel.

The nature of the action and the material facts are stated in the opinion. The referee’s conclusion of law, that the acceptances did not constitute a payment until they were “ actually paid,” was erroneous.

This action was brought to foreclose a mortgage executed by the defendant Eosa Lowenstein to Henry Lowenstein, and by him assigned to plaintiff. The material facts are stated in the opinion. The right of the plaintiff to recover in this action does not depend upon the actual title or authority of Eosa IT.

This action was brought for the partition of certain lands, owned by plaintiffs and defendant Nichols as tenants in common. • The complaint alleged that defendants Andrews and Ilusted claim to have liens upon the premises, under and by virtue of certain certificates of sale thereof for the non-payment of taxes. The complaint asked for a determination as to the validity of such liens.

Appeal by Edward C. Haney from order of the General Term of the Supreme Court, in the third judicial department, made July 2, 1883, which affirmed an order of Special Term denying a motion on the part of said Haney to compel the receiver of the Continental Life Insurance Company, appointed in the proceeding above entitled, to execute to him, said Haney, an assignment of thirty-six shares of the stock of the Atlantic Hational Bank, which had been bid off by him at a sale of…

' (Mem. of decision below, 25 Ilun, 438.) This action was brought to compel defendant to transfer to plaintiff, on its books, ten shares of its stock, and to issue to him a certificate therefor; also to recover various stock and cash dividends which had been declared upon said ten shares.

This action was brought to have certain lands situate in Sullivan county adjudged to be the lands of the plaintiff, and that she be awarded possession thereof; also to restrain the foreclosure of a mortgage thereon, executed by defendant Thompson to defendant Stevens, and to have the same canceled of record.

This action was brought to recover guaranteed dividends upon certain shares of stock of the Michigan Southern and ¡Northern Indiana ¡Railroad Company, which was consolidated with others in the organization of the defendant, and whose obligations defendant assumed and agreed to pay. The material facts are stated in the opinion. Section 390 of the Code of Civil Procedure is applicable to a corporation.

This action was to foreclose a mortgage. The defense was usury. The material facts are stated in the opinion. A subsequent incumbrancer is not entitled as such to interpose the plea of usury against a prior mortgagee. (De Wolf v. Johnson, 10 Wheat. 367, 393; Loomis v. Eaton, 32 Conn. 550; Hollingsworth v. Twichard, 10 Iowa, 385; Powell v. Hunt, 11 id. 430; Farmers and Mechanics’ Bank v. Kimmel, 1 Mich. 64; Ready v. Huebner, 46 Wis. 792; 32 Am.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1882, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. (Mem. of decision below, 26 Hun, 525.)</p> <p>This was an action of ejectment.</p> <p>Both parties claimed title under, deeds from the heirs of George Lott, who it was conceded died seized of the premises in question. Plaintiff claimed under a deed executed by said heirs to Cornelius Hornet, dated September 11, 1855, conveying “all their right, title and interest in and to Pelican beach, near Barren island, in the town of Flat-heads.” Fornet conveyed by quit-claim deed, containing the same description, in 1855, to Abraham B. Coleman. The deed also conveyed other lands. In July, 1856, said- Coleman executed a conveyance to plaintiff, which described the other lands deeded by Fornet, and described the premises conveyed as being the same premises conveyed to Coleman by Fornet, but Pelican beach was not mentioned in the deed. On December 13, 1880, John H. Platt, as assignee in bankruptcy of said Coleman, in pursuance of an order in bankruptcy of the District Court of the United States for the southern district of New York, executed to plaintiff a deed containing the same description. The order was granted upon petition of the bankrupt, showing that the lands were purchased and paid for by plaintiff, but were by mistake omitted in the deed of 1856. The order and the assignee’s deed recited that they were made for the purpose of correcting such mistake. The deed under which defendant claims was executed by the heirs of George Lott to John L. Bergen, July 3, 1877.</p> <p>Further facts appear in the opinion.</p> <p>As defendants were in actual possession of the locus in quo, claiming under a title adverse to that of the grantor at the time of the conveyance by the assignee, it was void. (2 R. S. [6th ed.] 1120; 1 R. S. 739.) This was not a judicial sale, such a sale must be under a Iona fide judgment or decree of a court having competent jurisdiction. (Hoyt v Thompson, Exr., 1 Seld. 346; Williamson v. Berry, 8 How. [U. S.] 495.) Nor was this conveyance in pursuance of any previous valid contract to convey. (4 Kent’s Com. [7th ed.] 448, note, 488; 4 U. S. Dig., p. 584, No. 2,624.) The lands in possession of the defendants are in the town of Gravesend. (1 R. S. [6th ed.] 205; Denton v. Jackson, 2 Johns. Ch. 320; North Hempstead v. Hemstead, 2 Wend. 109.)</p> <p>In construing descriptions in deeds the utmost liberality is allowed, and the intent of the parties will be effectuated if it can by any possibility be gathered from the deed. (Jacksons. Delancy, 11 Johns. 365; Loomis v. Jackson, 19 id. 449; Rollin v. Pickett, 2 Hill, 552; Jackson v. Marsh, 6 Cow. 281; Mason v. White, 11 Barb. 173; Peck v. Mellams, 10 N. Y. 532.) The words of conveyance used are sufficient to convey a fee. A quit-claim deed operates as a conveyance. (Jackson v. Alexander, 3 Johns. 484; Jackson v. Fish, 10 id. 456; Jackson v. Root, 18 id. 60, 78; Lynch v. Livingston, 6 N. Y 422.) The deed from John H. Platt, as assignee in bankruptcy of Abraham B. Coleman, is a valid deed and well describes and conveys the premises in question. (Stevens v. Houser, 39 N. Y. 302, 303.)</p>

This was an action for assault and battery. The defense was that the acts complained of were done by defendants lawfully in defense of their possession. The case is reported upon a prior appeal, in 73 N. Y. 529. It appeared upon the trial that the assault complained of grew out of a controversy between the parties who owned adjoining farms in respect to the right to a quantity of hay, which plaintiff had cut on the south side of the highway adjoining his farm.

The complaint in this action alleged in substance, that by the will of Minerva Sherwood, who died seized of certain premises situate in Broome county, which are described in the complaint, she gave and devised the said premises to the plaintiff, Jane A. Weed, with the condition, however, that should said plaintiff die leaving no child or children, grandchild or grandchildren, then that the fee of the premises should pass to certain persons named, and the will directed that…

This action was for the admeasurement of dower. The material facts are stated in the opinion. When the fundamental questions in an action have been decided, but further proceedings are necessary to gather up the details of a litigation so that a final judgment can be pronounced and enrolled, and when a review of a decision is intended, the right to such review ought to exist before going through with the supplemental proceedings.

, a party defendant, and giving him leave to appear and defend. (Reported below, 15 J. & S. 125.) The nature of the action and the material facts are stated in the opinion. It was not illegal for plaintiffs to take the risks of the consignment. (Brooks v. Avery, 4 Comst. 225.) If the indebtedness of the defendants’ firm had not been reduced below 50,000 francs at any time, the goods would still continue the property of the plaintiffs.

(Reported below, 30 Hun, 148.) The board of supervisors was bound to levy and assess the amount of the judgment on the town of Kingston. (Laws of 1880, chap. 554.) The court had the right and it was its duty to apportion the debt due the relator on failure and neglect of the proper officials so to do.

30, 1882, which reversed a judgment in favor of the defendants, entered upon an order dismissing the complaint on trial, and which granted a new trial. (Reported below, 16 J. & S. 169.) This was an action for false imprisonment. The defendants employed an attorney to bring an action against the plaintiff, who obtained judgment in their favor. An execution against property was returned unsatisfied, and the attorney then issued an execution against the person.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon a case submitted under section 1279 of the Code of Civil Procedure.</p> <p>The facts appearing in the case are substantially stated in the opinion.</p> <p>If the description is uncertain we can turn to the mortgages referred to in the deed, and from them secure the correct description of the property intended to be conveyed by the grantors .of Flannelly. (Worthington v. Hyler, 4 Mass. 196; Jackson v. Clark, 7 Johns. 217; Robinson v. Kine, 70 N. Y. 154; Hathaway v. Power, 6 Hill, 454; Drew v. Swift, 46 N. Y. 204; Augustine v. Britt, 15 Hun, 395; B., N. Y. & E. R. R. Co. v. Stigeler, 61 N. Y. 348; Higinbotham v. Stoddard, 72 id. 94.)</p> <p>If the subject of a grant cannot be ascertained by its description the grant becomes void from the necessity of the case. (2 Washburn on Heal Property, 622, §§ 23, 24.) The vendors under their contract were bound to convey a good title; not merely to give a deed sufficient in form. (Story v. Conger, 36 N. Y. 637.)</p>

(Reported below, 25 Hun, 350.) This action was brought to recover damages for the loss of plaintiff’s baggage while en route from Hew York city to Hew Orleans. The material facts are stated in the opinion. Whether the relation between the plaintiff and the', defendant be considered one of . contract or of voluntary bailment, the defendant must be held liable for the loss consequent upon the diversion of the plaintiff’s baggage.

Appeal by Elizabeth Wright and other land-owners from order of the General Term of the Supreme Court, in the second judicial department, made May 17, 1883, which vacated an order of Special Term, confirming the report of commissioners appointed herein to appraise the compensation to be paid said land-owners for the lands sought to be condemned in these proceedings for the use and benefit of the ¡New York, West Shore and Buffalo Railway Company, which also vacated and set…

The plaintiff, ■ in his complaint in this action, claims to recover damages by reason of the failure of the defendant to reconvpy to him certain real estate, which he, the plaintiff, had previously conveyed to one Jeremiah Harris at the request of the defendant.

The nature of the action and the material facts are stated in the opinion. This action should be construed as against the defendants officially, and the motion for a nonsuit should have been granted. (Chap. 291, Laws of 1867, tit. 4, §§ 1, 4; tit. 14, §§ 5, 6; Cordier v. Thompson, 7 N. Y. Weekly Dig. 474, Beers v. Shannon, 19 id. 161; Sup’rs v. Gregg, 66 Barb. 287; 56 N. Y. 509; 2 Abb.

The nature of the action and the material facts are stated in ‘the opinion. Royal Torrey is estopped from setting his own title up as a defense against the title under which he entered; and whatever estops him estops his grantees.

<p>Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 17, 1881, which affirmed a judgment in favor of plaintiff entered on a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Conversion is a hostile interference with the owner’s control. (McMorris v. Simpson, 21 Wend. 610; 2 Greenl. Ev., § 642; Salt Spring Bank v. Wheeler, 48 N. Y. 492; Laverty v. Snethen, 68 id. 522; Freeman v. Venner, 120 Mass. 424.) Negligent performance of duty is not conversion, and can only be redressed in an action on the case. (Dickinson v. Dudley, 17 Hun, 569; Sergeant v. Blunt, 16 Johns. 74; Laverty v. Snethen, 68 N. Y. 522.) The court erred in refusing to charge defendant’s request, that though the jury find that the defendant was, at one time, requested by the plaintiff to make an investment of $2,100 for her, yet all agency, duty and responsibility which thereby rested on the defendant were revoked and ended if the plaintiff afterward instructed Thomas MacKellar to do the same thing, or that which included the same thing. (Story on Agency, § 474.) Plaintiff, having failed to cause a release or re-conveyance to be made, or to have the record canceled, has, therefore, made no rescission. (Moyer v. Shoemaker, 5 Barb. 319; Wheaton v. Baker, 14 id. 594; White v. Seaver, 25 id. 235.) Proof of plaintiff’s ignorance of the effect of her acts, and of the- facts before her, was erroneously admitted. (Broom’s Legal Maxims, 253; 1 Wait’s Actions and Defenses, 219, 220, 232, 233, 256.) The court, although it committed the facts to the jury “ on the evidence,” erred, because it assumed to tell the jury what that evidence was, and constrained them to regard that evidence as all hostile to the defendant. (Vedder v. Fellows, 20 N. Y. 126, 130.)</p> <p>Facts as found by a primary tribunal, and affirmed by the General Term, are conclusive upon this court. (Code of Civil Procedure, §§ 1337, 1338; Loeschick v. Baldwin, 38 N. Y. 326; Barker v. White, 3 Keyes, 495; In re Ross, 87 N. Y. 514; Williams v. Western U. T. Co., MSS., October 3, 1883; Phelps v. MacDonald, 26 N. Y. 82; Marvin v. Univers. L. Ins. Co., 85 id. 282.) There was ample evidence of a state of facts upon which the law would justify the judgment appealed from (Fulton v. Whitney, 66 N. Y. 555; Davoue v. Fanning, 2 Johns. Ch. 252; Gardiner v. Ogden, 22 N. Y. 327; Graves v. Waterman, 4 Hun, 689; 63 N. Y. 657; Conkey v. Bond, 36 id. 429; Duncombe v. N. Y., etc., R. R. Co., 84 id. 198.) The exceptions to the admission of evidence over defendant’s objection were not available, no grounds of objection having been stated. (Requa v. Holmes, 16 N. Y. 193; Valton v. Nat. Fund Life Ins. Co., 20 id. 32; Newell v. Doty, 33 id. 83; Levin v. Russell, 42 id. 251; Chester v. Dickerson, 54 id. 13.) Though a defendant moves for a nonsuit, and is entitled thereto, yet, if his motion being denied, kb puts in evidence, and subsequently plaintiff’s ease is established, defendant’s exception to the refusal to nonsuit is waived (Cole-grove v. Harlem, etc., R. R. R. Co., 6 Duer, 382; affirmed, 20 N. Y. 492; Gardiner v. Ogden, 22 id. 327.) A request is bad which requires a judge to assume in his charge matter of fact upon which the jury are to pass. (Deems v. Crook, 1 Edw. 95.)</p>

This action was brought to restrain defendant from obstructing or interfering with certain pipes by which water from a spring upon defendant’s lands was conveyed to the buildings upon the lands of plaintiff. The facts, so far as material, are stated in the opinion. The old maxim, secundum allegata et probata, has never been so far departed from as to allow a party to recover upon a cause of action not alleged.

<p>Appeal from judgment of the General Term of the Superior Court of the- city of Flew York, entered upon an order made May 14,1878, which modified and affirmed as modified 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>An action against an officer of a bank, for making loans of its funds in a manner not authorized by law, can only be maintained by strict proof that the corporate funds or property have been lost and wasted, and the corporation has suffered actual loss. (2 Saunders on Pl. and Ev. [5th Am. ed], part II, p. 1023; Story on Agency, § 236; Com. Bk. of Albany v. Ten Eyck, 48 N. Y. 305, 311.) In the case at bar there was no evidence whatever of the taking or loaning of any money, or indeed of any tangible thing, and, therefore, no support for any part of the plaintiff’s claim. (Mott v. U. S. Trust Co., 19 Barb. 569; U. S. Trust Co. v. Brady, 20 id. 119; Pratt v. Short, 79 N. Y. 437; Pratt v. Eaton, id. 449; Duncomb v. N. Y., H. & Cent. R. R. Co., 84 id. 190.) Until a surrender or restoration to Colburn of the securities which the bank received, the acts of the defendant in hostility to the charter of the bank could not be avoided. (Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y. 190, 199.) A joint action may be maintained against all the officers who participated in any wrongful act, or any violation of the charter, or a separate action may be brought against each, and a recovery had for the whole amount of the loss caused by the acts of each. There may be but one satisfaction, but there may be several judgments for the wrongful acts of each. (Livingston v. Bishop, 1 Johns. 290; Trader s’ Ins. Co. v. Roberts, 9 Wend. 474, 476; Kasson v. People, 44 Barb. 347.) The court had undoubted power to amend the defendant’s answer on the trial. (Code of Procedure, § 173; Reeder v. Sayre, 70 N. Y. 181; Knapp v. Roche, 37 N. Y. Sup. Ct. 406; Chapman v. Dobson, 78 N. Y. 74; Smith v. Rathbun, 75 id. 122, 125; Parsons v. Sutton, 66 id. 92, 95; Poillon v. Volkenning, 11 Hun, 385; Crosby v. Watts, 41 N. Y. Supr. Ct. 208.) A new trial must be ordered when irrelevant evidence has been received under exception, unless the court can see that it would not have' affected the verdict. (Green v. H. R. R. R. Co., 32 Barb. 25, 34; Erben v. Lorillard, 19 N. Y. 299, 302, 305; Wright v. Eq. & L. Ass. Co., 41 N. Y. Sup. Ct. 1, 16; Knapp v. Roche, 62 N. Y. 614.)</p> <p>The defendant, as an officer of the bank, was its agent, and under the same responsibility to it for any abuse of his powers or violation of his duties as the agent of an individual is to his principal (Austin v. Daniels, 4 Dem. 299.) The defendant was prohibited by the act of incorporation from using its funds in any manner, except to pay its necessary current expenses. (Laws of 1868, chap. 831, § 6.) The jury having thus found upon competent evidence, their verdict conclusively establishes the point that the defendant made these loans. (Decker v. Myers, 31 How. Pr. 372; Magee v. Osborne, 32 N. Y. 669.) The moneys having been improperly disposed of by the defendant, for any loss occasioned thereby he is liable, and in an action, known under the former practice as an action on the case, a recovery may be had against him. (Franklin Ins. Co. v. Jenkins, 3 Wend. 134.) The fact that Smith, the president, co-operated with Roche, the vice-president, in some of these improper investments, or use of the funds of the bank, affords no defense to this action. (Austin v. Daniels, 4 Denio, 299.) Ho business could be legally done by less than five trustees of the bank acting as a board. In this case, the loans having been made by only two, theirs were not a corporate act, but the act of two officers or trustees on their individual responsibility. (Franklin F. Ins. Co. v. Jenkins, 3 Wend. 134.) The judge had no power to permit on the trial an amendment to the answer setting up a new defense, viz., payment. (Code, § 723; Van Syckels v. Perry, 3 Rob. 621; Woodruff v. Drekle, 5 id. 619; Ford v. Ford, 53 Barb. 525.)</p>

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon, an order made February 8, 1882, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to foreclose a chattel mortgage, dated October 22, 1879, purporting to have been executed by defendant, the Chrome Steel Company.</p> <p>The defense was that at the time of the execution of the mortgage the- company was insolvent, and that the mortgage was executed in contemplation of insolvency.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The failure to obtain the consent of the stockholders, and file the same as required by statute, did not render the first two mortgages void. At most, they were hut voidable. (1 Kyd on Corp. 69, 76, 78, 108; Angell & Ames on Corp., § 145; 2 Kent’s Com. 282; Reynolds v. Comm’rs Stark Co., 5 Ohio, 204; White Water Valley C. Co. v. Valette, 21 How. [U. S.] 414; Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328; Silver Lake B’k v. North, 4 Johns, Ch. 370; Nat. B’k v. Mathews, 98 U. S. 621; Jones v. Guaranty and Indemnity Co., 101 id. 628; Chester Glass Co. v. Dewey, 16 Mass. 102; Steam Nav. Co. v. Weed, 17 Barb. 378; Leazure v. Hillegas, 7 S. & R. 313; Goundie v. Northampton Water Co., 7 Penn. St. 233; Runyon v. Coster, 14 Pet. 122; Gold Mining Co. v. Nat. B’k, 96 U. S. 640; Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 604.) But if the first two mortgages were void at law the agreement to give a valid mortgage still remained and created an equitable lien upon the property in question. (Jones on Chattel Mortgages [2d ed.], §§ 170-173, note 1; Holroyd v. Marshall, 10 H. L. Cas. 191; Mitchell v. Winslow, 2 Story, 630-644; Smithurst v. Edmonds, 14 N. J. Eq. 408; Geners v. Wright, 18 id. 330; Mc-Caffrey v. Wooden, 65 N. Y. 459; Hale v. Omaha Nat. B’k, 49 id. 626; Weisner v. Ocumpaugh, 71 id. 113; Husted v. Ingraham, 75 id. 251; Wood v. Lester, 29 Barb. 145; 1 Story’s Eq. Jur., § 64 g; Dodge v. Williams, 1 Abb. Ct. of App. Dec. 517; Craig v. Leslie, 3 Wheat. 578; Seymour v. C. & N. F. R. R. Co., 25 Barb. 284-302; Lanning v. Tompkins, 45 id. 316; Haverly v. Becker, 4 Comst. 170; Delaire v. Keenan, 3 Dessauss. 74; In re Howe, 1 Paige, 125-128; Dwight v. Newell, 3 Comst. 185; White v. Carpenter, 2 Paige, 217-266; Arnold v. Patrick, 6 id. 310-315; Seymour v. C. & N. F. R. R. Co., 25 Barb. 284; Payne v. Wilson, 74 N. Y. 348; Willard’s Eq. Jur. 442-443; Story’s Eq. Jur., § 1503 b; Whitford v. Gaugain, 3 Hare, 416.) That the agreement to give a mortgage upon the property in question is one a specific performance of which would be enforced in equity there can be no doubt. (Jones on Mortgages, § 163; Jones on Chattel Mortgages, § 3; Phyfe v. Wardell, 5 Paige’s Ch. 282; Cravy v. Smith, 2 Comst. 62; Dodge v. Willman, 1 Abb. Ct. of App. Dec. 517; Hale v. Omaha Nat. B’k, 49 N. Y. 626; Hunt v. Rhodes, 1 Pet. 1-13.) If the plaintiff had either a legal or an equitable lien upon the property, taking another or different conveyance of the same property for the purpose of perfecting the liep, is not a transfer or assignment of property made in contemplation of bankruptcy or insolvency within the meaning of any bankrupt or insolvent statute. (Clark v. Iselin, 21 Wall. 360-368; Cook v. Tullis, 18 id. 332; Sawyer v. Turpin, 1 Otto, 114; Burnheisel v. Firman, 11 Bankr. Reg. 505; Brett v. Carter, 14 id. 301; Watson v. Taylor, 21 Wall. 378; Tiffany v. Boatman’s Savings Inst’n, 18 id. 375-388; In re Potts, Crabbe [Penn.], 469; Hutton v. Canthvell, 1 E. & B. 15-20; Harris v. Rickett, 4 H. & N. 1-6; Burdick v. Jackson, 7 Hun, 488; Castle v. Lewis, 77 N. Y. 131; Hunt v. Mortimer, 10 B. & C. 43; 21 Eng. Com. Law R. 29.) A mortgagee of chattels majfopursue all his remedies concurrently. (Jones on Chattel Mortgages [2d ed.], § 758.)</p> <p>As the mortgage was executed and delivered in direct violation of the statute (1 R. S. 603, § 4), it was wholly void. (Bowen v. lesse, 5 Hill, 223.) The Chrome Steel Company being actually insolvent at the time the mortgage was made, the statute applies. (Robinson v. Bank, 21 N. Y. 406; Harris v. Thompson, 15 Barb. 62; Loring v. Company, 30 id. 644; 36 id. 330; Brouwer v. Harbeck, 55 id. 589; Walkenshaw v. Perzel, 32 How. 233; Herrick v. Borst, 4 Hill, 650.) The neglect to refile the original mortgages as 'required by law would have rendered void their lien as against Rowan’s judgment. (Laws of 1833, chap. 279, § 13; Laws of 1873, chap. 501, § 3; Randall v. Dunbar, 14 Weekly Dig. 332; Stewart v. Beale, 7 Hun, 405; affirmed, 68 N. Y. 629; Thompson v. Van Vechten, 27 id. 581-583; Brackett v. Harvey, 25 Hun, 504; 91 N. Y. 214; Ely v. Carnley, 19 id. 498; Porter v. Parmley, 52 id. 185; Best v. Staple, 61 id. 71; Steele v. Benham, 84 id. 634.) There is no force in the suggestion that the clause prohibiting corporations from transferring their property in contemplation of insolvency was repealed by Laws of 1871, chapter 481, or Laws of 1878, chapter 163. (Laws of 1848, chap. 40, § 2; People v. Smith, 69 N. Y. 177; 5 Hill, 223.) A mortgage like the one in suit cannot be made to raise money to carry on the business of a corporation. (Carpenter v. Black Hawk Gold Mining Co., 65 N. Y. 43, 48, 49-52.)</p>

Appeal' from order of the General Term of the Supreme Court, in the fourth judicial department, made January 9, 1883, which affirmed an order of Special Term, appointing a receiver of the rents and profits of the mortgaged premises, in an action for foreclosure. (Reported below, 29 Hun, 94.) The material facts are stated in the opinion. The rents and profits not having been specifically pledged in the mortgage, the order appointing the receiver was erroneous.

<p>An ordinance of the city of New York requires the insertion in every contract for work done for the city, of a clause that payment of the last installment due thereunder shall be retained until satisfactory evidence is furnished “ that all persons who have done work or furnished materials under such contract,” and who have given ten days written notice that a balance is due them, have been fully paid or secured. In an action by a contractor to recover the last installment due on a contract, held, that conceding a material-man could by filing the prescribed notice obtain a lien upon the fund in the hands of the city, as to which qucere, he could not obtain a lien upon the balance due under one contract for materials furnished upon another.</p>

(Reported below, 26 Hun, 364.) The nature of the action and the material facts are stated in the opinion. „ The court erred in refusing to-find as a fact that Mary A. Bates, prior to and at the time of the conveyance to her of said premises, orally agreed, in consideration thereof, and as a part of the purchase-price, to take the conveyance thereof, subject to said $15,000 mortgage, then held by the plaintiff, this being a material and vital fact in the case, and being…

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, entered upon an order made April 8, 1882, which denied a motion for a new trial and directed judgment on a verdict.</p> <p>This action was brought to recover damages for injuries sustained by plaintiff while in defendant’s employ as a brakeman, in consequence of the falling of a bridge, as a train, upon which plaintiff was, was passing over it.</p> <p>The material facts are stated in the opinion.</p> <p>Assuming that the bridge fell by reason of certain defects inherent in its original construction, and not the result of use, and which defects, therefore, existed prior to the time at which it came into the defendant’s possession, it was error on the part of the court to submit to the jury that question as one, the affirmative answer to which would result in establishing negligence on the part of the defendant. (Devlin v. Smith, 89 N. Y. 470, 476.) The request to charge “ that if the defendant employed competent and trustworthy agents to examine and take charge of this structure, who assumed to do so during the time that it was the owner of or occupied the bridge, the defendant is not liable,” should not have been denied. (Wood’s Master and Servant, §§ 346, 348, 368; Painton v. N. Cent. R’y Co., 83 N. Y. 7, 12.)</p> <p>The defendant was bound to furnish plaintiff with a reasonably safe bridge to pass over, and failing so to do, is liable. (Swords v. Edgar, 59 N. Y. 28; Shearman and Redfield on Negligence, §§ 93, 95; Davis v. C. V. R. R. Co., 55 Vt. 84; 27 Alb. L. J. 106.) While it is true the defendant did not construct this bridge originally, having purchased it of a company that built it, and put it in use, it should be held to the same rule as if it had constructed it; it was the occupant of the bridge, and hence primarily liable. (Swords v. Edgar, 59 N. Y. 28; Ryan v. Wilson, 25 Alb. L. J. 175.) It Was a clear case of imperfect and inadequate means and appliances and imperfect machinery. (Lansing v. N. Y. C. & H. R. R. R. Co., 49 N. Y. 521; 7 Lans. 70; Shearman and Redfield on Negligence, § 92.)</p>

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made April 6,1882, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The burden of proof is upon the plaintiff to show that the note in controversy has, not been paid, as payment may be presumed from lapse of time. (Flag v. Ruden, 1 Bradf. 195; Jackson v. Sackett, 7 Wend. 94; Barr v. Williams, 6 Pick. 187; Oswald v. Lugh, 1 T. R. 271; 3 Starkie on Ev. 823; Cooper v. Turner, 2 Stark. 497; Cent. B’k of Troy v. Haydon, 48 N. Y. 260; Lyon v. Odell, 65 id. 28; Angell on Limitations, 10, 80, 96.) The circumstances of the debtor and creditor are evidence to increase or rebut the presumption so created. (Ross v. Darby, 4 Munf. 428; Gratham v. Canaan, 38 N. H. 268-270.) The fact that defendant was of sufficient pecuniary ability to pay its obligations raises a presumption that the note has been paid. (Miller v. Smith’s Ex’rs, 16 Wend. 425; Garner v. Sandford, 2 Sandf. 440.) Waiting until the death of Deegan before suits brought increases the presumption. (Wharton on Evidence, § 1363.) Twenty years neglect of collection is a sufficient period to ground the presumption of payment of a bond. (Rogers v. Judd, 5 Vt. 236.) The residence in 27ew Jersey does not rebut the presumption. (Keline v. Keline, 20 Penn. St. 503.) As under the Revised Statutes, and the Code of Civil Procedure, § 376, judgments are conclusively presumed to be paid" after twenty years, therefore a fortiori of the note in suit is conclusively presumed to have been paid. (Ross v. Darby, 4 Munf. 428; Malloy v. Vanderbilt, 4 Abb. N. C. 127.) When the statements of a witness are grossly improbable, or he has an interest in the question at issue, courts and juries are not bound to blindly accept the statements of such witness, hut may exercise their judgment. (Elwood v. W. U. Tel. Co., 45 N. Y. 549.)</p> <p>The making and delivery of the note to the payee being admitted by the answer, the production of the note on the trial by the plaintiff, with proof of indorsement by the payee, was prima facie evidence that the plaintiff became the owner of the note before maturity, for value, in good faith. (Collins v. Gilbert, 94 U. S. 753; Bedell v. Carll, 33 N. Y. 581; Barlow v. Meyers, 64 id. 46; M. & T. B’k v. Crow, 66 id. 87.) A valuable consideration for an ihdorsement is presumed. (Riddle v. Mandeville, 5 Cranch, 322.) In the absence of any restriction as to the use of accommodation paper, the person to whom it is given, by way of accommodation, may make any legitimate use of it he pleases. (Hager v. Worrall, 69 N. Y. 371; M. & T. B’k v. Crow, 60 id. 85, 87; Rose v. Bedell, 5 Duer, 462; Collins v. Gilbert, 94 U. S. 753.) If defendant, after giving evidence that the note was made by him for the accommodation of Deegan, desired to raise the point that plaintiff must prove payment of a consideration to Deegan before he was entitled to recover, he should have done so at the close of the evidence. (Osgood v. Toole, 60 N. Y. 475; McKeon v. Lee, 51 id. 300; Tracy v. Altmyer, 46 id. 598,600; Spooner v. Keeler, 51 id. 562; Thayer v. March, 75 id. 342.) Defendant having resided in New Jersey until 1876, and the action having been begun prior to April, 1881, the statute of limitations was not a bar. (Old Code, §§ 91, 100; Code of Civil Procedure, §§ 382, 401.) The fact of his being in New York occasionally, or even frequently on business, did not cause the statute to run. (Murray v. Fisher, 5 Lans. 98; Bennett v. Cook, 43 N. Y. 537; Rockwood v. Whiting, 118 Mass. 337; Bell v. Lampley, 57 N. H. 170-1.) Although payment may in some eases be presumed from a long lapse of time, where the creditor gives no evidence to rebut the presumption or explain the delay, yet it has never been held that mere lapse of time paid a debt. (Johnson v. A. & S. R. R. Co., 54 N. Y. 424, 426, 427; Dean v. Hewitt, 5 Wend. 257; Pinkerton v. Bailey, 8 id. 600; Soulden v. Van Rensselaer, 9 id. 293; Sands v. Gelston, 15 Johns. 511; Bell v. Morrison, 1 Peters, 351.) The declarations of Deegan to the defendant, in the absence of plaintiff, were properly excluded. (Page v. Cagwin, 7 Hill, 361.)</p>

(Reported below, 26 Hun, 229.) The nature of the action and the material facts are stated jn the opinion. The penalty fixed by the statute does not attach if an inventory is made and filed within thirty days by the debtor. (Laws 1877, chap. 466, § 3; 1 Abb. N. C. 43, 44.) The delivery of the inventory to the clerk of the county judge and the filing by him was a sufficient compliance with the statute. (Laws 1878, chap. 11.) The act of 1878 (Chap. 11) is not unconstitutional.

(Reported below, 26 Hun, 134.) This was an action to foreclose an alleged mechanic’s lien. The material facts are stated in the opinion. By chapter 379 of the Laws of 1875, the legislature intended to enlarge the remedy afforded by the former acts on the same subject.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of defendants, entered upon an order made January 21, 1882, which denied a motion for a new trial and directed judgment upon a verdict.</p> <p>This action was brought upon a guaranty of payment of rent reserved by a lease, the substance of which, as well as the material facts, are stated in the opinion.</p> <p>The court clearly erred in holding that the defendants were, without assignment, entitled to set off the damages sustained by the society by reason of the injury to the furniture, carpets, etc., for the reason that the society was insolvent. (Gillespie v. Terrence, 25 N. Y. 306; Lasher v. Williamson, 55 id. 619; Smith v. Felton, 43 id. 419; O’Blenis v. Karing, 57 id. 649.) This damage to property outside the leased property, if a cause of action at all, was solely one in tort, and therefore not a set-off, counter-claim, or recoupment, even in favor of the society, much less in favor of defendants in this action. (Edgerton v. Paige, 20 N. Y. 281; Boreel v. Lawton, 90 id. 293.) The court erred in holding as matter of law that if the premises were untenantable and unfit for occupancy on the 24th of December, 1874, without fault of the tenants, then they were justified in leaving, and were not liable for more than §75 and interest. (Crogin et ad. v. N. Y. C. R. R. Co., 51 N. Y. 61; Butter v. Kidder, 87 id. 99.) The court erred in holding that the landlord was liable for the damages arising from the negligence of other tenants in the building, if he was notified of the defect, or if the defect came to his knowledge and he failed within a reasonable time to use all reasonable care and diligence in repairing that defect. (Robbins v. Mount, 4 Robt. 553; Witty v. Mathews, 52 N. Y. 512.) The defect was not one which came within the meaning of the statute of 1860 (Chap. 345). (Suydam v. Jackson, 54 N. Y. 450; Locknow v. Hergan, 58 id. 635.) The court erred in refusing to charge that the lessees had the right to repair the part of the water pipe which passed through the hall over the part of the building occupied by them. (Lampson v. Milks, 21 N. Y. 508; Coddington v. Dunham, 35 N. Y. Sup. Ct. 442.)</p> <p>The statute of 1860 applies to every case where the demised premises become untenantable and unfit for occupancy from any cause other than the want of such ordinary repairs to the demised premises as the tenant is bound to make. (Fash v. Kavanagh, 24 How. 347; Laws of 1860, chap. 345; West Side S’v’gs B’k v. Newton, 57 How. 152; 76 N. Y. 616.) The negligence on the opart of the lessor, by which the demised premises became untenantable, after his promise to repair, repeatedly made and broken, amounted to an eviction, and justified the lessees in surrendering possession without reference to the statute of 1860. (Alger v. Kennedy, 49 Vt. 109; Jackson v. Eddy, 12 Mo. 209; Roger v. Ostrom, 35 Barb. 523; Toole v. Beckett, 67 Me. 544; Seguard v. Corse, 9 W. D. 51; Dyett v. Pendleton, 8 Cow. 727, 731, 735; Wood’s Landlord and Tenant, § 384; Collins v. Barrow, 1 M. & R. 112; Cowie v. Goodwin, 9 C. & P. 378.) A party who deprives another of the consideration upon which his obligation is founded cannot, in general, recover for a violation of that obligation. (Dyett v. Pendleton, 8 Cow. 731, 735.) The lessees, defendant’s assignors, could recover from the plaintiff, its lessor, all damages sustained by such lessee from the neglect and failure of the plaintiff .to stop the leakage of water into the premises after notification thereof. (Rogers v. Ostrom, 35 Barb. 523; Stapenhorst v. Am. Manuf. Co., 46 How. Pr. 510; Toole v. Beckett, 67 Me. 544.) It was not necessary that the acts complained of should amount to an eviction. (Lucky v. Frantzke, 1 E. D. Smith, 47; Morgan v. Smith, 5 Hun, 220; Cooke v. Soule, 56 N. Y. 420; Myers v. Barns, 35 id. 269.) The sureties of an insolvent lessee in an action for rent may avail themselves of any counter-claim existing in favor of their principal to an extent sufficient to defeat a recovery without proof of an assignment or transfer of such counter-claim to them. (Morgan v. Smith, 7 Hun, 244.) A covenant for quiet enjoyment of the premises during the term is implied on the part of the lessor in every lease for three years. (Mayor v. Mabie, 3 Kern. 152; Boreel v. Lawton, 90 N. Y. 293.) The failure of the landlord to perform the agreement to repair gave the tenant a cause of action on contract, and is a proper counter-claim in this action. (Cooke v. Soule, 56 N. Y. 420; 1 N. Y. Sup. Ct. 116; Gleadell v. Thompson, 56 N. Y. 194, 200.) As the damages were sustained from the failure to repair certain parts of the building in the possession and under the control of the plaintiff, the charge that he is liable was proper. (Priest v. Nichols, 116 Mass. 401.) The tenant would have been a trespasser if he had interfered with the water pipes of the landlord. (West Side S’v’gs B’k v. Newton, 57 How. 152; Coddington v. Dunham, 35 N. Y. Sup. Ct. 442.)</p>

This action was upon a bond executed by defendants as sureties for one Hack. The material facts are stated in the opinion. The defendants were sureties for Hack and not principal debtors, and the release of Hack from the order of arrest by active interference of the plaintiff, and without the consent of the defendants, discharged them. (Code of Procedure, §§ 186, 187, 200; Hayes v. Ward, 4 Johns.

(Reported below, 28 Hun, 122.) This action was brought by plaintiff, as receiver of the Marshall Packing Company, a corporation organized under the act providing for the incorporation of manufacturing corporations, to recover a balance alleged to be due upon a subscription for fifty shares of the capital stock of said company, also to recover a balance alleged to be unpaid upon fifty other shares which had been assigned to him.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of N ew York, entered upon an order made January 3, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and denied a motion for a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>A demand or claim having passed into judgment cannot again be brought into litigation between the parties in proceedings at law. (Cromwell v. County of Sac, 94 U. S. 353; The Packet Co. v. Sickels, 5 Wall. 592.)</p> <p>A claim which has been set up by way of either defense or recoupment, and disallowed, cannot be used as a counter-claim in a subsequent action. (Birckhead v. Brown, 5 Sandf. 134, 145; 2 Smith’s L. C. [7th Am. ed.], H. & W. 771; Demarest v. Darg, 32 N. Y. 281; Wilder v. Case, 16 Wend. 583; Rogers v. Rogers, 1 Hilt. 194.) Upon such evidence as was admitted without objection, the Nebraska judgment is a bar to the counter-claim. (Clemens v. Clemens, 37 N. Y. 59, 73; Harris v. Harris, 36 Barb. 88, 94; Kerr v. Hays, 35 N. Y. 331, 337; Collyer v. Collins, 17 Abb. Pr. 467; Ehle v. Bingham, 7 Barb. 494.) A judgment on a general verdict, where two or more issues are involved, is prima facie evidence that all were passed upon, and a bar in regard to any one of them, until the party against whom the verdict was rendered has shown that it was not passed upon. (Yonkers v. Bishop, 1 Daly, 449; White v. Simonds, 33 Vt. 178; Day v. Vallette, 25 Ind. 42; Henderson v. Kenner, 1 Kick. 474; Bagot v. Williams, 3 B. & C. 235; 1 Greenleaf on Evidence, § 532.) A judgment is conclusive not only as to the matters actually litigated, but as to every thing that might have been litigated in the former action. (Cromwell v. County of Sac, 94 U. S. 351, 352; Aurora City v. West, 7 Wall. 82, 96; Dunham v. Bower, 77 N. Y. 76; Hayes v. Reese, 34 Barb. 156; Bruen v. Hone, 2 id. 586; Casler v. Shipman, 35 N. Y. 533, 545; Jordan v. Van Epps, 85 id. 427, 436; Smith v. Smith, 79 id. 634; 2 Smith’s L. C. [7th Am. ed.], H. & W. 767; Castle v. Noyes, 14 N. Y. 329; Embury v. Conner, 3 id. 511, 522; Jennison v. Springfield, 13 Gray, 544.) This case should therefore be treated as though the principal of the alleged debt had been (as it was) the one matter in issue, and then the general rule applies that a counter-claim founded on facts that would have been fatal to the plaintiff’s recovery in the former action is barred by the former judgment, whether set up there or not. (Dunham v. Bower, 77 N. Y. 76.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. When an agency is created or conferred by a written instrument, and grows wholly out of it, the nature and extent of the authority must be ascertained from the instrument itself, and camuqt be changed or enlarged by usage. (Gardner v. Smith, 6 Tenn. 591; Hogg v. Snaith, 1 Taunt. 347; Potter v. Everett, Ired.

(¡Reported below, 26 Hun, 28.) The proceedings of the commissioner were brought up for review by certiorari.

<p>. Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made the first Monday of March, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 16 J. & S. 175.)</p> <p>This action was brought upon a guaranty, the substance whereof is set forth in the opinion. The complaint alleged the drawing of a draft or bill of exchange on June 30, 1879, by Adams, referred to in said guaranty, and which was covered thereby for the sum of $13,000 at sixty days’ sight, which was, before maturity, indorsed by the payees to plaintiff; also the presentation thereof for payment at maturity, refusal and protest.</p> <p>The material facts are stated in the opinion.</p> <p>The plaintiff never having applied, the payment of $2,144, the law will now do it equitably as the justice and circumstances of this case require, having due regard to the position of all parties. (Stone v. Seymour, 15 Wend. 20, 29, 33; Campbell v. Vadder, 3 Keyes, 174; Cowperthwaite v. Sheffield, 1 Sandf. 416 d, 452; 3 N. Y. 243, 246; Righter v. Stall, 3 Sandf. Ch. 608, 612; U. S. v. Kirkpatrick, 9 Wheat. 720; Wright v. Wright, 7 Daly, 55; 72 N. Y. 149; Pattison v. Hull, 9 Cow. 747; Dows v. Morewood, 10 Barb. 183; The Antarctic, 1 Sprague, 206; Dorsey v. Gassaway, 2 H. & J. 402; Neal v. Allison, 50 Miss. 175; Windsor v. Kennedy, 52 id. 164; Pierce v. Sweet, 33 Penn. St. 151; Jacksons. Johnson, 11 Hun, 509; Bridenbecker v. Lowell, 32 Barb. 9, 22, 23; Story’s Eq. Jur., § 459c, note 3; Marryatts v. White, 2 Starkie, 101.) In this case equity requires that th'e payment of $2,144 should be applied at least pro rata upon the two drafts. (Emery v. Tichout. 13 Vt. 15; Ramsour v. Thomas, 10 Ired. [N. C.] 165.)</p> <p>When a debtor makes a payment, he has the right to direct the application, because it is his money which is being paid. If he fails to make any application, the creditor may make it. If none is made by either party, then the court directs such application as in equity and in justice it should. (Wright v. Wright, 7 Daly, 55; 72 N. Y. 149; Stone v. Seymour, 15 Wend. 20.) Defendants had no equitable right as sureties to have the payment of $2,144 applied on the $13,000 draft. (Harding v. Tifft, 75 N. Y. 461; Allen v. Culver, 3 Denio, 285; Stone v. Seymour, 15 Wend. 20; B’k of Newburgh v. Bigler, 83 N. Y. 51.) The creditor’s right of application was not limited to the time of the payment to him. (Sheppard v. Steele, 43 N. Y. 53; Mayor, etc., v. Patten, 4 Cranch, 317; Simpson v. Ingham, 2 B. & C. 65; Wilkinson v. Stern, 9 Mod. 427; Philpot v. Jones, 4 N. & M.) If, however, the court be of opinion that after suit brought no application of previous payments can be made by the parties, and that the defendants have sufficiently established that no application was made before the suit, the court ought to apply this payment on the $8,000 draft. (Field v. Holland, 6 Cranch, 8; Briggs v. Williams, 2 Vt. 283; Hilton v. Burley, 2 N. H. 193, 196; Blackstone B’k v. Hill, 10 Pick. 129, 133; Chester v. Wheelwright, 15 Conn. 562; Stamford B’k v. Benedict, id. 437, 445; Jones v. Benedict, 83 N. Y. 79.)</p>

(Reported below, 22 Hun, 6.) This action was brought to recover for moneys alleged in the complaint to have been received by defendant, an attorney and counselor, “in a fiduciary capacity,” which belonged to the plaintiff as next of kin of John F., Adeline and Mary S. Segelken, deceased. The material facts are stated in the opinion. If the action were brought in tort it could not be maintained.

This was a motion to compel appellant to print certain papers, which were exhibits on the trial, as part of the return to this court. The facts are stated in the opinion.

writ of habeas corpus, which remanded the petitioner to custody. The facts pertinent to the questions presented are stated in the opinion. Chapter 93, Laws of 1883, authorizes such an interference with personal freedom and private property as is forbidden by section 6 of article 1 of the Constitution of the State.

The complaint in this action alleged the commencement of an action in plaintiff’s favor against one Bonner, the issuing of an attachment therein and the levy thereof upon certain specified property of the attachment debtor; the recovery of judgment in said action and the issuing of execution thereon to the sheriff, and the advertisement by him for sale of the property levied on, on February 23, 1878.

(Reported below, 26 Hun, 225.) This action was brought to foreclose a mortgage executed by defendants Zalinski and wife.

Appeal by defendant from decision pf the General Term, affirming judgment convicting him of felonious assault,' rendered November 1, 1882, in the General Sessions of New York, Hon. Feedeeick Smyth, Recorder, presiding.

(Reported below, 28 Hun, 242.) The nature of the action and the substance of the complaint are stated in the opinion. A paper purporting to be a will, executed in conformity with the laws of another country by a person “ temporarily residing ” in that country at the time of his death, but being “an inhabitant of and domiciled in this State,” cannot be admitted to probate, or proved or established as such in this State, unless executed in the manner prescribed by our statute.

The order of the Special Term setting aside the subpoena duces tecum, and relieving the plaintiffs from the obligation thereof, was properly reversed, and should not have been vacated. (Code of Civ.

Supreme Oourt, in the second judicial department, made September 10, 1883, which reversed two orders of the surrogate of the county of Kings, one of which denied an application for the appointment of the Brooklyn Trust Company as administrator of the estate of Charles W. Goddard, deceased; the other awarded letters of administration to the public administrator of that county. The material facts are stated in the opinion.

Higgins, deceased. The facts are sufficiently stated in the opinion. Probate of the will should be denied because the testator did not acknowledge its subscription to each of the attesting witnesses, and at the time declare it to be his last will and testament. (3 R S. [7th ed., Throop] 2285.) A subscription of a will by a testator, after the witnesses have signed their names to it, is not a due execution of it by him.

H. Jackson, as testamentary trustee under the will of Elizabeth McCarter, deceased, to file an account; also an order of said' surrogate directing a reference on said accounts and appointing a referee; also the decree of the surrogate rendered upon the coming in of the report of the referee settling the accounts and directing payment. The General Term order also imposed the costs upon the trustee individually. The facts, so far as material, are stated in the opinion.

<p>Appeal by William E. Kenyon from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1883, which affirmed a decree of the surrogate of Westchester county, upon the accounting of the executors of the will of John Milderberger, deceased. (Reported below, 29 Hun, 212.)</p> <p>The testator died in 1871 leaving real and personal property. The material provisions of his will are as follows:</p> <p>“ Sixth. After my death, I hereby order and direct my executors hereinafter named to invest all the rest, residue and remainder of my real and personal property on bonds and mortgages in the county of Westchester on property worth double the amount, with interest at seven per cent, payable half yearly, farms being preferred, said interest to accumulate until such times as are hereinafter named.</p> <p>“Seventh. I give, devise and bequeath to my grandson, Selden Milderberger Spencer, one-third of all my real and personal estate, not hereinbefore disposed of, to be paid to him at the time of his marriage.</p> <p>“ Eighth. I give, devise and bequeath unto my said grandson, Selden Milderberger Spencer, at the time of his marriage, one other third of my real and personal estate, not hereinbefore disposed of in trust, to pay the interest thereof semi-annually, to my grandson Seymour Hobart Spencer, upon the express condition that the said Seymour Hobart Spencer shall renounce the Boman Catholic priesthood, said payment of interest to commence at the time of such renunciation, and upon the further condition that the said Seymour Hobart Spencer shall marry, I give, devise and bequeath the said money held in trust, together with the accumulated interest thereon, to my said grandson, Seymour Hobart Spencer.</p> <p>“ Ninth. I give, devise and bequeath the one other remaining third of all my real and personal property not hereinbefore disposed of, to my other grandson, William Edward Kenyon, at the time of his marriage.</p> <p>“ Tenth. In case of the death of the said Seymour Hobart Spencer before marriage, I give, devise and bequeath his- said share to my grandson, Selden Milderberger Spencer, at the time of his marriage.</p> <p>“ Eleventh. And in case of the death of the said Selden Milderberger Spencer before marriage, I give and devise his said share or shares to my said grandson, William Edward Kenyon.</p> <p>“ Twelfth. And in case of the death of said William Edward Kenyon before marriage, I give, devise and bequeath his said share or shares to Selden Milderberger Spencer, if - he should be living and married, if not living, I give, devise and bequeath the same to the children of my sister, Hester Ann Lee, wife of Dr. Charles A. Lee, of Peekskill, K. Y., share and shares alike.</p> <p>“ Thirteenth. In case of the death of my said three grandchildren before marriage, I give, devise and bequeath all of said three shares of my real and personal estate to the children of my sister, Hester Ann Lee, wife of Dr. Charles A. Lee, of Peekskill, ÍL Y., share and shares alike.</p> <p>“ Fourteenth. I do hereby authorize and empower my executors hereinafter named to sell all or any of my real estate, and to give good and sufficient deeds therefor.”</p> <p>W. E. Kenyon married in 1879, and shortly thereafter received his one-third. On September 2, 1881, Selden M. Spencer married. On the 15th of the same month Seymour executed an instrument, under seal, which purported to release and assign all his rights under the will to Selden, and on the same day, the executors paid to Selden §28,000, on account of the two shares. Afterward, on the 26th of the same month, Selden died, leaving a last will and testament, which has been duly admitted to probate, the executors of which claim that they are entitled to receive from the executors of John Milderberger’s will the residue in their hands, as well by virtue of that will as of Seymour’s assignment.</p> <p>On behalf of the executors of Milderberger, it was claimed, among other things, that Seymour had no assignable interest, and that the fund must remain in the hands of a trustee, to be appointed by the court, to await the performance of the conditions by Seymour. On the part of Seymour it was insisted, that as it was personal estate, if it should be determined that nothing passed by the assignment, the executors of Selden were entitled to the fund. On the part of the appellant Kenyon, it was claimed that no interest in Seymour’s one-third passed to the executors of Selden on his death, but that it continues a trust fund, and the gift will lapse in case of the death of Seymour before marriage.</p> <p>A condition precedent must happen before Selden M. could be vested with Seymour’s share, and, not having happened, the share did not vest in Selden M. at the time of his marriage. (Carr v. Robertson, 1 Seld. 125-134.) The death before marriage of Seymour H. is a condition precedent, the performance ot which is necessary to vest the legacy; if the legatees die before that period his personal representatives will not be entitled to it. (Willard on Executors, 356; Preston on Legacies, 104; 2 P. Wms. 610, 612; 1 Seld. 125-134; Smith v. Edwards, 88 N. Y. 92; Delaney v. McCormic, id. 174.)</p> <p>The intent of the testator was that' the portion of the estate mentioned in the eighth and tenth clauses of the will should vest in Selden upon his marriage as an estate in expectancy; and that if Seymour did not comply with the condition, Selden or his heirs should take. (Moore v. Lyons, 25 Wend. 119; Stevenson v. Lesley, 70 N. Y. 512; Williamson v. Field, 2 Sandf. Ch. 553; Matter of Meyer, 57 How. Pr. 206; Patterson v. Ellis, 11 Wend. 293; Kane v. Astor, 5 Seld. 113.) On the marriage of Selden he took an estate in expectancy in the form of a vested contingent remainder, vesting in interest at the time of his marriage, descendible, devisable and alienable, but subject to being divested by Seymour’s renunciation of the priesthood and marriage, (R. S., part 2, chap. 1, tit. 2, art. 1, § 13; R. S. [Banks’ 7th ed.], part 2, chap. 4, art. 3, tit. 4, § 2, p. 2256; Hennesy v. Patterson, 85 N. Y. 91; Moore v. Little, 41 id. 72, 76; Manice v. Manice, 43 id. 380; Lawrence v. Bayard, 7 Paige, 75; Mead v. Mitchell, 17 N. Y. 210.) The execution and delivery of the assignment from Seymour to Selden destroyed the trust and enlarged the estate to a full estate in Selden, either as an equitable assignment or by estoppel. (Miller v. Emans, 19 N. Y. 385; Ham v. Van Orden, 84 id. 257; Thomas’ Coke, note f, 456; Litt. § 446.) It was not necessary that Seymour should have a vested interest. He could assign his right to perform the conditions and take the estate, to one having a vested interest, and the agreement could at least be enforced in equity, even if he in the future complied with the condition. (Field v. Mayor, 6 N. Y. 186; Miller v. Emans, 19 id. 385; Bean v. Welch, 17 Ala. 773; Williams v. Ingersoll, 89 N. Y. 518.)</p> <p>The conditions of the will were valid. (Hull v. Hull, 24 N. Y. 651; Roper on Legacies, 834, 859.) Seymour H. Spencer had no vested assignable interest under the will. (Sweet v. Chase, 2 N. Y. 80; 1 Roper on Legacies, 644, 656; Neal v. Hanbury, 1 Roper, 637; Chipman v. Montgomery, 63 N. Y. 231-2; Jacobs v. Miller, 27 Alb. L. J. 335.) The executors of the will of Selden M. Spencer do not succeed to the trust which vested in him at the time of his marriage. (Delany v. McCormick, 14 N. Y. Weekly Dig. 399.) Upon proper application, the Surrogate’s Court not only had the power, but it was the duty of the court to appoint a successor to the deceased trustee. (Mayor, etc., of N. Y. v. Furze, 3 Hill, 615.)</p>

(Mem. of decision below, 29 Hun, 668.) The complaint in this action alleged, in substance, that defendant was employed by J. Melner Peck, the original plaintiff and the present plaintiff’s intestate, as his agent to conduct and carry on the lumber business at the lumber yard of said Peck; that said defendant sold a large quantity of lumber and received the pay therefor, for which he failed to account, but embezzled and converted the same to his own use.

(Reported below, 27 Hun, 577.) Letitia A. Jones presented a petition to said surrogate, stating in substance that Emma Louisa Van Allen was a legatee under the will of Isaac 0.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made at the March term, 1883, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury.</p> <p>This action was brought by plaintiff as executor of the will of Isaac Lowenstein, deceased, to recover an endowment alleged to be due under the charter and by-laws of defendant, a corporation organized under chapter 188, Laws of 1878. Lowenstein became a member of the corporation defendant in 1871. At that time among its by-laws as the following :</p> <p>“ Section 1. — In case of the death of a member entitled to the full rights of a lodge in this district, the sum of one thousand dollars ($1,000) collected by regular contributions from all the lodges in this district shall be paid to the wife of the deceased if living and if dead to his children, and if there are none then to such person or persons as he may have formally designated to his said lodge prior to his decease.”</p> <p>In October, 1874, Lowenstein left with his lodge a declaration as follows : “ The $1,000 my heirs are to receive of the district 1,1. O. B. B. I give to my mother Rika Lowenstein.” In April, 1877, he executed his will which contained this bequest to his mother, “ the sum of $1,000, or such other sum as may be payable to my representatives ” from defendant; in case of the death of his mother prior to his decease, he gave to his brother Levy Lowenstein. The testator’s mother died in November, 1877, he died in April, 1880, unmarried, and having no children and being a member of defendant in good standing. Prior to his death defendant’s by-laws had been changed and those in force at the time of his death, so far as they relate to the controversy, were as follows :</p> <p>“ Section 1. A fund which shall be known under the name of ‘ Widow and Orphan Fund of District No. 1, I. O. B. B.’ is hereby created, to assist widows and orphans of deceased brethren of this district. Each and every member of a lodge in the district shall contribute equally to this fund and shall be entitled to its benefits.</p> <p>“ § 2. The object of this fund shall be to secure the sum of $1,000, after the death of a member, collected by uniform contributions from all lodges, and this amount shall be paid, in the first instance, to his wife or children as herein provided by section 6 ; or secondly, if she be dead, to his children, or thirdly, if he leaves no children, to his father, or fourthly, to his mother. No other person shall be entitled thereto, unless a brother shall have so designated in writing to his lodge as hereinafter provided.</p> <p>“ § 3. Every lodge is in duty bound to keep a book, in which each member may, and every unmarried member without parents, or widower without children or parents, shall declare to whom the amount designated in these laws shall be paid after his decease. These declarations shall be witnessed by a brother of the lodge.</p> <p>“ In this manner such brother shall have the right to bequeath said amount to any person or persons other than provided in section 2, or to any charitable institutions connected with the order. Such book shall be kept well locked and with due care by the secretary and delivered to his successor in office, he taking a receipt therefor.</p> <p>“ § 4. Should any member fail or neglect to make such declaration, as provided in section 3 of this article, the legal amount shall be collected after his decease and placed to the widow and orphan reserve fund.”</p> <p>Even if Isaac Lowenstein was not privileged to make a declaration in the form and to the effect which he did execute, the defendant, by accepting it and thereafter continuing to receive payments from him, waived all objections to the declaration, and was bound to submit to its terms, and to pursue its direction as to the payment of the fund to “the heirs.” (Erdman v. Mut. Ins. Co., 44 Wis. 376; Roswell v. Eg. Aid Union [N. D. N. Y.], 13 Fed. Rep. 840.) Isaac Lowenstein, having executed a will by which he made disposition of the fund in the event of the nullity of the declaration, did all that should or could have been done to reserve the endowment to a person of his selection. (Supreme Council v. Priest, 46 Mich. 429; Richmond v. Johnson, 10 N. W. Rep. 596; Expressmen’s Aid Society v. Fenn, 9 Mo. App. 412; Masonic, etc., v. McAuley, Am. L. Reg. 141.) With reference to society insurance, courts have invariably “ strained a point ” to avert a forfeiture. (Supreme Lodge v. Abbott, 82 Ind. 1; Georgia Masonic M. L. I. Co. v. Gibson, 52 Ga. 640; Excelsior In. A. A. v. Riddle, 16 Cent. L. J. 407; Illinois Masonic, etc., v. Baldwin, 86 Ill. 402.)</p> <p>The designation or declaration made by Isaac Lowenstein to his lodge in October, 1873, became ineffectual because of the subsequent death of his mother, and the failure of the deceased to comply with defendant’s by-laws by not designating some other person as his beneficiary. (By-laws, art. 10; Arthur v. Odd Fellows’ Association, 29 Ohio St. 557; Ind. Mut. B. Soc. v. Clendinen, 44 Md. 429; 22 Am. Rep. 52; 4 Kent’s Com. 327, 334; Duvall v. Goodson, 22 Alb. L. J. 479; Kentucky Masonic Ins. Co. v. Miller’s Adm’r, 13 Bush, 494; Richmond v. Johnson, 28 Minn. 447; Durian v. Central Verein, 7 Daly, 168.) The will of Isaac Lowenstein was not in any way a compliance with the by-law of the district. (Duvall v. Goodson, 22 Alb. L. J. 479.) The fund provided is a benefit and not insurance. (Gundloch v. Germ. Ins. Co., 4 Hun, 339, 341; Ballou v. Giles, 3 Wis. 273; Durian v. Central Verein, 7 Daly, 168; M. M. B. Co v. Clendinen, 44 Md. 429; 22 Am. Rep. 52; Arthur v. Odd Fellows’ Ben. Association, 29 Ohio St. 557; Greeno v. Greeno, 23 Hun, 478, 482; Kentucky M. M. L. I. Co. v. Miller, 13 Bush, 489.) When the deceased signed his declaration in the lodge book, he adopted the provisions of the law governing the payment of this benefit, and it became binding upon him as a contract between him and the district. (Gundloch v. Germania Association, 4 Hun, 341; Gooch v. Association of Aged Females, 109 Mass. 558, 567; McCabe v. Father M. Soc., 24 Hun, 149, 152; 2nd. Mut. Soc. v. Clendinen, 44 Md. 432; Lassenscheidt v. Fresco Painters, 1 City Ct. R. 8; St. Patrick’s B. Soc. v. McVay, 92 Penn. St. 510.)</p>

McCall, Jr., as superintendent of the insurance department of the State of Mew York, requiring him to fix the compensation of Edward Mewcomb,'as receiver of the Atlantic Mutual Life Insurance Company. The facts are sufficiently stated in the opinion. A statute ought to receive such construction as will best answer the intention of the makers. The title of an act of the legislature in this State is proper to be considered as bearing upon the meaning and purpose of the act.

<p>The provision of the State Constitution (Art. 10, § 3), declaring that where the duration of an office is hot provided by the Constitution or declared by law “ such office shall be held during the pleasure of the authority making the appointment,” applies only when the power is continuous.</p> <p>Where appointments had been made under the act of 1878 (Chap. 305, Laws of 1878), making provision for a police commission in the town of New Lots, which provides for the appointment of three commissioners within thirty days after the passage of the act by certain town officers specified, among others “the justices of the peace * * * now in office having the shortest term to serve,” and that .in case of a vacancy in said office the successor shall be appointed by the supervisor of the town, held that the power of original appointment was conferred only upon those who at the time specified held the offices named, not upon those who might thereafter be incumbents; also that the power embraced but a single act and was exhausted with its performance; and that those holding the offices named had no authority to remove the persons so appointed.</p>

Also, appeals from two orders of said General Term, made at the same term, which denied motions on the part of defendants to vacate an order of arrest herein. This action was commenced in 1878, upon a guaranty of payment contained in an assignment of a bond and mortgage.

The nature of the decree and the material facts are stated in the opinion. The claim of dower is to be favored, and the presumption is that a provision in a will,. not expressed to be in lieu of dower, was intended as a bounty in addition. (Sanford v. Jackson, 10 Paige, 266; Bull v. Church, 2 Denio, 430; 5 Hill, 206; Lewis v. Smith, 9 N. Y. 502; Fuller v. Fates, 8 Paige, 325; Leonard v. Steele, 2 Barb. 20; Adsit v. Adsit, 2 Johns.

This action was upon a bond executed by defendant to plaintiffs’ testator.

This was an appeal from an order of General Term revers ing, upon the facts, a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to recover as upon a quantum meruit for services alleged to have been rendered by plaintiff for defendant, and for expenses paid.