Volume 96 — New York Reports

This action was brought to recover for work, labor and services alleged to have been rendered by the plaintiff for the defendant. The plaintiff was employed by the- superintendent of the department of docks as a scowman at $2.50 per day for his services. He continued in such employment from June 27, 1874, to March 4, 1876. Periodically and at the end of every two weeks during that time he received payment for his services at the rate of $2.50 per day.

This action was brought to procure a judgment dissolving the defendant on the ground, among others, of its refusal to make the, semi-annual reports required by the act, chapter 324, Laws of 1874. The material facts are stated in the opinion. The defendant is not a moneyed corporation. (1 E. S. 599, § 31.) It has no authority to issue notes or to make discounts. (1 E. S. 600, § 4; F. Ins.

<p>One driving horses along the streets of a city is bound to anticipate that passengers on foot may be at the crossings, and to take reasonable care not to injure them; if he fails to look out for them, or when he sees, does not, so far as in his power, avoid them, he is chargeable with negligence.</p> <p>Plaintiff, an infant about three years old, while crossing a street on a crosswalk was knocked down by one of the horses of a team owned by defendants and driven by their servant and was run over by the wagon ; the driver went on without stopping until stopped by an officer who went in pursuit of him. The day was clear, the streets unobstructed, the horses moving at a walk, and from the driver’s seat he could, had he looked, have seen the child in time to avoid him. In an action to recover damages for the injury, the driver testified that he did not see plaintiff and did not know of the accident until stopped by the officer. Held, that the facts justified the submission to the jury of the question as to the driver’s negligence.</p>

(Reported below, 30 Hun, 409.) The complaint, after averring the death of George ITussner, plaintiffs intestate, and her appointment as administratrix, contained these averments: “That the said decedent was seized and possessed in his life-time in fee-simple of certain lands lying in the eighth ward of the city of Brooklyn, county of Kings, and lawfully owned and possessed of the same since the month of September, in the year 1861, and that such lands are described as…

<p>The firm of D. & J., at the time they were adjudged bankrupts, owned a seat in the N. Y. Stock Exchange, the title to which stood in the name of J.; this was included in their schedule of property. Plaintiff was appointed their assignee; an assignment was executed to him of all their property by the registrar in bankruptcy, and they were subsequently discharged. Notwithstanding tne assignment, J. continued to use and enjoy his privileges as a member of the Exchange. By its constitution and bylaws, persons can become members and obtain seats therein only upon election as prescribed; and, subject to certain specified conditions, membership may be transferred in the mode prescribed, but not without the consent and approval of the Exchange. In an action to restrain J. from using and occupying his seat and to compel him to execute and deliver a proper instrument transferring all his interest in the same, held, that the seat or membership is in a certain sense property, and as between plaintiff and J. passed by the assignment in bankruptcy to and became vested in the former, and nothing more could be done by the latter to divest himself of such title, but, held, that the action of J. in continuing to act as a member in no way injured plaintiff; and, in the absence of evidence that he had in any way interfered with or denied plaintiff’s, rights, to preserve those rights, it was unnecessary to restrain such action, nor was a judicial declaration that the property in the seat passed to plaintiff necessary; and, therefore, that a refusal of the court to exercise its equitable jurisdiction was proper.</p> <p>It seems that if, in order to make a transfer of the seat to some person who may be chosen a member of the Exchange, or who may take a transfer from plaintiff for the purpose of applying for membership, it shall become necessary for defendant to execute some further instrument, and he re-</p> <p>fuses, the jurisdiction of a court of equity may properly be invoked to compel Mm to do so.</p> <p>It seems also that plaintiff in such case is not required to apply to the court in bankruptcy for relief ; the provision of the Bankrupt Act (U. S. R. S., § 5104) providing that the bankrupt, until his discharge, shall be subject to the order of the court, and shall execute all proper instruments and do all acts required of him by that court touching the assigned property, has no application. The authority so conferred upon the court ceases upon the discharge of the bankrupt.</p>

An. application for such an order is not a motion as defined by the Code of Civil Procedure (§ 768), but a special proceeding “for the enforcement or protection of a right ” (§ 3334) in which costs may be awarded in the discretion of the court as in an action.

The defendant was sentenced to imprisonment for life. (Reported below, 32 Hun, 123.) The material facts are stated in the opinion. fío offense can be considered a second offense under the Penal Code, unless it appears that the first offense charged was a crime under the Code. (Penal Code, § 719; Cooley’s Constitutional Limitations [4th ed.], 324, 325 326.

<p>Appeal from order of the General Term of the-Supreme Court, in the second judicial department, made May 14, 1883, which affirmed an order of Special Term, appointing commissioners to ascertain the compensation to be paid by the petitioner for lands of John Peters, sought to be claimed in these proceedings.</p> <p>The material facts are stated in the opinion.</p> <p>As the petitioner never was incorporated, it has no legal existence. {B. R. dh TJ. JR. JR. Co. v. Barnard, 31 Barb. 258; People v. President, etc., of Manhattan Co., 9 Wend. 351, 381-2.) The legal existence of the petitioning company, as a corporation, is at the foundation of the right to take property for its use. {In re B. W. de N. IIy Co., 72 H". Y. 245.) The use for which the land in question is sought to be taken is at least in part a private use. {Emb-ury v. Connor, 3 Comst. 511.) Private property cannot be taken for private use against the owner’s consent. {Taylor v. Porter, 4 Hill, 147; Bloodgood v. M. & H. R. R. Co., 18 Wend. 59; Yariek v. Smith, eto., 5 Paige, 137 ; In re R. da C. R. R. Co. v. Davis, 43 JST. Y. 137.) As the petitioner seeks to take the land in question, in part at least for private use, its application should be denied. (72. & 8. 72. 72. Co. v. Davis, 43 hT. Y. 137; In re R. Y. C. <& II. li. 11. 72. Co. v. 77ie Jf. ¿7. L. Co., 63 id. 326; In re R. Y. C. & II. 72. 72. 72. Co., 77 id. 248.)</p> <p>The use for which the petitioner requires this property is a public use. {Beekmam, v. 8. & 8. B. 72. Go., 3 Paige, 45, 73, 74, 75 ; Matter of Townsend, 39 IT. Y. 171 ; B., etc., R. G. L. Go. v. Richardson, 63 Barb. 450 ; Mayor, etc., v. Bailey, 2 Denio, 432, 433; Matter of Middleton, 82 hT. Y. ; Matter of Ryers, 72 id. 1; Matter of R. Y. G. & R. R. R. 72. Go., 77 id. 248, 261, 262, 263 ; Munn v. People, 94 IT. S. 113, 130, 133; 15 Alb. L. J. 180.) The word “ basin,” as used in the act of 1881 (Chap. 667), means not only the mere hollow “basin ” containing the water, nor merely the hollow and the water, but the place where vessels can float, and the docks and warehouses appurtenant thereto and forming a part thereof. (Webster’s Dictionary, Basin / Sword v. Edgar, 59 hT. Y. 28, 31.) Where land is taken in invitum as and for a use, which is one of those agreed to be public, the right of the public to have and enjoy that use, sub modo and in some manner, runs with the taking and remains with the land. {People v. C. d¿ II. 72. 72. 72. Go., 28 Dun, 543, 549, 550.) The objection that the law of 1881 cannot make applicable provisions of the General Railroad Act without rc-enacting them is not tenable. (People, ex rel. Gommrs., v. Banks, 67 IT. Y. 568, 575; Hathaway v. Tuttle, 12 Weekly Dig. 24.) The act of 1881 does not grant to a corporation an exclusive privilege, immunity or franchise. {Matter of Gilbert E. Ry. Go., 70 IT. Y. 348, 349, 370, 371; St. Paul's F. c§ M. Ins. Co. v. Allis, 24 Minn. 75 ; Wallis v. Loomis, 7 Otto, 154, 164; Taft v. Gity of Buffalo, 82 IT. Y. 212; People, ex rel. v. Banks, 67 id. 574.) Apart from, and before the act of 1881, this company was fully created and clothed with all the necessary powers of a corporation. {Matter of Van Antwerp, 56 IT. If. 261; Teft v. City of Buffalo, 82 id. 204; Angelí & Amos on Corporations, §§ 76, 77; 1 Potter on Corporations, 8; Matter of E. Y. El. By. Go., 70 E. Y. 338; Town of E. H. v. Town of II., 2 Wend. 110; Denton v. Jackson, 2 Johns. Cli. 320, 324; Bow v. Allenstown, 34 E. II. 349; Mahony v. B'k of the State, 4 Ark. 620.) The legislature is the final and only judge of what corporate objects require special legislation and what objects can be attained under general laws. (.People y. Bowen, 30 Barb. 21, 29 ; 21 E. Y. 517, 530; Moshier v. Hilton, 15 Barb. 657; O. 8. Trust Go. y. Brady, 20 id. 119 ; Met. B'k y. Van Dyck, 27 E. Y. 400, 448.) The delegation of the right of eminent domain ,for the acquisition of land for commercial basins and w'harves is clearly constitutional. (Beekman v. S. dé S. B. B. Go., 3 Paige, 44, 73, 74; Bloodgood v. M. dé II. B. B. Go., IS Wend. 9, 15, 21, 46.) A commercial basin on navigable water is a public work, and for the constructing of such a work the legislature may lawfully delegate the right of eminent domain. (Matter of Townsend, 39 E. Y. 171; Bloomfield y. N. G. L. Go., 63 Barb. 450; Bailey v. Mayor, 2 Denio, 433, 452 ; Matter of Vil. of Middletown, 82 E. Y. 196; Matter of Byers, 72 id. 1; JIdgecumbe v. Burlington, 46 Yt. 218; Edwards v. Stonington Gem. Ass'n, 20 Conn. 466; Platter of Deansville Gem. Ass'n, 66 id. 569; P. P. Ja G. 1. B. B. Co. y. Williamson, 91 id. 552; Matter of E. Y. G. da H. B. B. B. Go., 77 id. 248, 261, 262, 263; Munn y. People, 94 U. S. 113; 15 Alb. L. J. 180.) If a basin thus situated and open to the public is a public use, this court will not consider the necessity of its acquisition. (Platter of D. Gem. Ass'n, 66 E. Y. 569, 572.) As there is no precise authority‘for making the word “ basin ” include so much as warehouses, and if so rendering it makes the act unconstitutional, the court will decline to give it that meaning. (People, ex rel. Bolton, v. Albertson, 55 E. Y. 50, 56; Dubois v. Bay, 35 id. 165, 175.)</p>

These are appeals from judgments of the General Term of the Supreme Court, in the first judicial department, entered upon orders made at the October term, 1883, which affirmed judgments in favor of plaintiffs, entered upon decisions of the court on trial at Special Term.

Freeman as executor of the will of Sarah A. Freeman, deceased. The testatrix died in December, 1876, leaving her husband, Alfred A. Freeman (the executor), her mother, Harriet A. Coit, and one daughter, Florence A. Freeman, then an infant about three years old, her surviving. The will of the testatrix, after providing for the payment of certain legacies, contained these clauses: “ II.

<p>Appeal from a decision of the Board of Claims, rendered October 10, 1883, dismissing a claim preferred by the appellant against the State on the ground that the facts stated in the petition did not constitute a cause of action.</p> <p>The substance of said facts are stated in the opinion.</p> <p>Plaintiff’s claim is equally valid under the statutes conferring jurisdiction on the old Board of Audit and the present Board of Claims against the State. (1 R.S. [7th ed.] 642, § 46; 646, §1; 648, §10; 651, §1; 60S, §§ 8-6; Laws of 1830, chap. 293, §§ 1, 2; Laws of 1836, chap. 287, §§ 10, 11; Laws of 1839, chap. 207, §§ 1-6; Laws of 1849, chap. 352, §§ 1, 2; Laws of 1870, chap. 321, § 1; Laws of 1876, chap. 444, §§ 1, 2; IB. S. [7th ed.] 49, § 3; Laws of 1883, chap. 205, §§ 1, 12, 7, 10.) These provisions clearly invest the Board of Claims with power to determine, in accordance with the rales of law and principles of justice, any and all claims against the State. (People v. Denison, 8 Abb. N. C. 133, 134, 139; Higginbotham, Exr., v. Comm'n)., 25 Gratt. 627, 637-639 ; Cosier v. Albcmy, 43 N. Y. 407, 408; Brigg v. Penn, 16 Peters, 541, 615; Fordyce v. Codman, 20 Ohio St. 14; Yedder v. Yedder, 1 Denio, 257; Denny v. Manhattan Co., 2 Ilill, 220; Sands y. Codwise, 4 Johns. 536, 558; MeCannY. Sierra Co., 7 Cal. 121, 123, 124; Ellison y. Ilalleck, 6 id. 386, 393; Dowell v. Cardwell, 4 Saw. [H. S.] C. E. 228, 229; Mead v. Stratton, 87 FT. Y. 493, 496; Bertholf v. O'Reilly, 74 id. 509, 514; Valons y. Owens, id. 526, 529.) When the language of a statute is definite and has a precise meaning, it must be presumed to declare the intent of the legislature, and it is not .allowable to resort to other means of interpretation, or by conjecture to restrict or extend the meaning. (Johnson v. II. R. R. Co., 49 1ST. Y. 455; Benton v. Wickwire, 54 id. 226; McCluslcey v. Cromwell, 11 id. 593, 601-3.) ..There is nothing in the cases relating to ■ the j urisdietion of the United States Court of Claims that conflicts with this doctrine. (Act of Feb. 24,1855, § 1; 1 Brightley’s Dig. 198; Bassett v. Fish, 75 JN". Y. 303; Weed v. Brockport, 16 id. 161, note; McCarthy v. Syracuse, 46 id. 194.) All governmental agents, as distinguished from mere political agencies, such as public officers, contractors, corporations and municipalities, have been held to strict accountability. (Robinson v. Chamberlain, 34 N. Y. 389 ; Johnson y. Belden, 47 id. 130; Fulton Ins. Co. v. Baldwim, 37 id. 648; Hover y. Barlchoof, 44 id. 113; Clark v. Miller, 54 id. 528; Bennett v. Whitney, IS Weekly Dig. 393; Adsit v. Brady, 4 Hill, 630; McMahon v. Second Ave. R. II. Go., 75 1ST. Y. 231; McCarthy v. Syracuse, 46 id. 194; little v. Banks, 85 id. 258; U. S. v. Lee, 106 H. S. 196, 220.) The State was engaged in the business of manufacturing hollow-ware, employed the overseers and received the profits. It also authorized the convicts to be used as laborers in the business and is, therefore, the real principal and responsible for the acts and proceedings of its agents. (Laws of 1870, chap. 427, §§ 8, 9; Laws of 1877, chap. 473, §§ 1, 2, 5; Laws of 1881, chap. 58, §§ 2, 3; 3 E. S. [7th ed.] 2647-2651; Comen v. Bcunkhead, 70 Ala. 493; People v. Stephens, 71 N. Y. 527; Donalds y. State, 89 id. 36, 44; II. 8. v. State B'k, 96 H. S. 30; Fifth Nat. B'k v. Long, 7 Biss. H. S. O. E. 503; Elliott v. Van Voorst, 3 Wall. Jr. 299; 1 Lieber’s Polit. Eth. 358, 359; id. 145, 152, 153, 157, 162, 180, 181; 2 Lieber’s Mis.. Writings, Penal Law, 474.) The claimant’s standing in court and his right of action are not affected by his conviction. (1 Wharton’s Cr. Law, §§ 138, 139; 3 R. S. [7th ed.] 2538, § 21; Penal Code, § 709; Platner v. Sherwood, 6 Johns. Ch. 118.)</p> <p>¡Negligence is never imputable to the State government in the administration of its affairs. In the absence of express legislation authorizing it, the State cannot be held answerable in its courts for the tortious acts or conduct of the officers or agents employed or appointed by it. (Story on Agency [3d ed.], § 319; Clodfelter v. State, 86 ¡N". C. 51; State v. Mill, 54 Ala. 67 ; TI. 8. v. Kirkpatrick, 9 Wheat. 720; Same v. Van Zandt, 11 id. 186 ; Same v. Nichols, 12 id. 105; Pox et al. v. Postmaster-General, 1 Pet. 317; Gibbons v. TJ. 8., 8 Wall. 269 ; People v. Russell, 4 Wend. 570 ; Seymowr v. Van Slyke, 8 id. 403; Ray Co. v. Bentley, 49 Mo. 236 ; Clark v. State, 7 Cold-well, 306.) The State was not engaged as a corporation in the prosecution of any work or undertaking for its own benefit, but in the performance of a public duty, for the protection of society against the criminal acts of the claimant, and it cannot, under such circumstances, be made liable for neglect or misfeasance, unless the liability is specially imposed by statute. (Allemongo v. Shultz, 25 Hun, 551; Millv. Boston, 129 Mass. 592 ; Lorillard v. Town of Monroe, 11 ¡NT. T. 392.) The act creating the State Board of Audit, chapter 444 of the Laws of 1876, does not create any new liability of the State, or enlarge its former liability. The ordinary rules of law are applicable to all such claims, and to the proceedings for their enforcement provided by that act. (Cerbat Mining Co. v. People, 29 ¡Hun, 81.)</p>

The nature of the action and the material facts are stated in the opinion. The act of defendant Roche in making the assignment was an act of voluntary bankruptcy and an admission of insolvency. (Curtis v. Leavitt, 15 1ST. Y. 131.) The deed of trust from Roche to McGowan is fraudulent and void on its face as against the creditors of Roche.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made July 2, 1883, which affirmed a judgment in favor of the defendants, entered upon the report of a referee. (Reported below, 30 Hun, 186.)</p> <p>This action was brought to recover the sum of $1,624.48, with interest from December 4,1878, first, for board and for care bestowed by the plaintiff upon William Snyder, defendant’s testator, at liis request, between August 6,1874, and December 5, 1878, of the value and at the agreed price of $1,616.26; secondly, for dry goods, clothing and liquors furnished by the plaintiff and her husband to said testator at his request in the years 1876, 1877,1878, of the value of $8.22. The plaintiff, who is the wife of defendant, Philip R. Snyder, alleges that before the commencement of the action her husband assigned to her all his interest in the matters above referred to, and also, all his right, title and interest in and to any account for board, care, maintenance and goods furnished to William Snyder by him and by the plaintiff, and that she is the owner of these claims; that William died on the 4th day of December, 1878, leaving a will by which the defendants were appointed his executors, and they have since qualified and are now acting as such; that her claim was presented to them and a demand made that it be allowed, or in default thereof that they consent to refer the same under the statute relating to such claims, “ but that the said defendant, Sylvester Snyder, refused to allow the same, and also refused to refer it.” Sylvester answered, setting up payment, and that the claim was part of a conspiracy between his co-exécutor and the plaintiff to defraud the estate. The referee found that the plaintiff was the wife of Philip JEt. Snyder, during the time the services alleged in the complaint were rendered; that she had then no separate estate, or business, or trade, and had no separate property other than what she claims in this action; that the testator died at the house of his son Philip, who had furnished him with board, washing and lodging for many years prior to August 7, 1874, at an agreed price, which was paid by William Snyder to Philip Snyder, on that day; that for several years before his death he required extraordinary care in the sickness to which he was subject, and more than ordinary care when in his usual health; that he was aged and infirm, afflicted with a disease loathsome and offensive to the senses, and the care of him was laborious and sickening to those having it in charge; that on or about the 17th day of January, 1874, he executed and delivered to Philip Snyder an instrument in writing, in words and figures, to-wit:</p> <p>“For value received, I hereby release my son Philip E. Snyder from all liability for the use of my household goods, or the loss or destruction, thereof, and I agree, also, to pay the said Philip E. Snyder, for the services of himself and family in taking care of me since the time I sold him a part of my farm;” that at the date of the contract and down to the time of the death of William Snyder, the family of Philip Snyder consisted of the plaintiff, two sons and a grown up and then unmarried daughter; that he. boarded at the house of Philip from the 7th day of August, 1874, to the 4th day of December, 1878, and during that time Philip Snyder had the use or benefit of the portion of the farm still owned by William Snyder, free of charge or rent; that on several occasions since 1874 and prior to his last sickness, William Snyder promised to pay the plaintiff for his board, when in his usual health, four dollars per week and from one dollar per day to seven dollars per day when sick, according to the value of the services rendered; that the reasonable price of the board of William Snyder while he was in his usual health, and as it was furnished, was the sum of four dollars per week, and for the time shown, at that rate amounts to $752; that from August 7, 1874, to December 4, 1878, he was so sick for a period of two hundred and eight days as to require, and he received, extraordinary care and attention; that the reasonable price and value of those extraordinary care and services was three dollars per day, amounting to the sum of $624; that after 1874, and prior to his last sickness, William Snyder told plaintiff he would give her his notes, money and mortgages to secure her until she was paid for taking care of him, and told her to keep them until she got her pay for taking care of him ; that plaintiff, at death of William Snyder, had possession of the money, notes and mortgages of William Snyder and still has them in her possession or under her control; that the extraordinary care and attention required by William Snyder in his sickness was rendered and given by plaintiff, Philip Snyder, his two sons and his daughter, the most arduous, disagreeable, as also the most meritorious portion of which was rendered and given by the plaintiff; that from August 7, 1874, and during all the time mentioned in the complaint in this action, Philip Snyder provided for the family and for the board of William Snyder and the plaintiff and his two sons and daughter, and supplied the house with provisions and the necessaries of life, and during the same period, the plaintiff performed and discharged the duties of wife, mother and housekeeper; that prior to the commencement of this action, Philip it. Snyder duly assigned and transferred to George Barber the written instrument or agreement above set out and ail his claims for compensation for the board of William Snyder and the services of himself and family, and said George Barber duly transferred and assigned the same to the plaintiff; that Philip B. Snyder assented to the arrangement made by his wife, the plaintiff, with his father, the said William Snyder, the testator, and transferred, as above stated, to the plaintiff all his claims for board of and services rendered to William Snyder by himself the said Philip B., or his family, including the services of the plaintiff ; that prior to the commencement of this action, the plaintiff duly presented her claim in this action to the executors, who refused to allow the claim or to refer it, and as conclusions of law he found and determined “ that the plaintiff, neither by the services she rendered, being the wife of the defendant executor, Philip B. Snyder, nor by force of any agreement with the testator, is entitled to maintain this action or recover for her services; that as assignee of the claim and demand of Philip B. Snyder, executor, she is not entitled to maintain this action against the execuutors of William Snyder, deceased, in this court,” and directed judgment of nonsuit.</p> <p>By the order of affirmance of the General Term, it was “ ordered and adjudged that the judgment appealed from be in all things affirmed with costs, without prejudice to the presentation of any claims by Philip Snyder, or his attorney, and certain findings of fact are reversed according to opinion.”</p> <p>The assignee of an executor or administrator is not limited to the same remedies to enforce his claim as were possessed by the executor or administrator. (2 B. S. 88, § 33; Code of Civ. Pro., §§'2739, 2740; Kea/rney v. McKeon, 85 1ST. Y. 136.)</p> <p>An executor can only transfer such rights, accompanied by such remedies, as he himself possesses, and his assignee stands in no better position as against the estate, has no greater or different rights or remedies than were held and enjoyed by his or her assignor before the assignment. , (2 R. S. 88, § 33; Laws of 1837, chap. 460, § 87; 2 R. S. [5th ed.] 175 ; Dayton on Surrogates [3d ed.], 394, §§ 33, 37; Treat v. Fortune, 2 Brad. 116; Accounting of Kelly Estate, 1 Tucker, 28-31; Kyle v. Kyle, 67 N. Y. 400, 408; Shakespeare v. Markham, 72 id. 400-407; Bouton v. Flint, 74id. 476, 480-481; Reilly v. Reilly, 15 N.Y.W’kly Dig. 195.)</p>

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 12, 1883, which sustained exceptions taken on trial to set aside a11 verdict in favor of defendants and against a new trial. (Reported below, 31 Hun, 92.)</p> <p>This action was brought to recover damages for an alleged breach of a contract for the use of plaintiffs’ barge.</p> <p>The material facts are stated in the opinion.</p> <p>If the alleged charter or agreement was in force on September 27, 1876, then the defendants were entitled to the possession of the barge without interference or molestation on the part of the plaintiffs. (Story on Bailments, § 372; Hartford v. Jackson, 11 ÜST. H. 145; Hickolc v. Buck, 52 V1.149; Bliss v. Schaub, 48 Barb. 343; Clarke v. Pooyer, McMullen [S. C.], 134; Story, §§ 3, ■ 385, 386; 2 Kent, 386, 586; Jones on Bailments, 86; MacKella v. Sigler, 47 How. 20; Shannon v. Burr,, 1 Hilt. 46; Sohinsler v. Ames, 16 Ala. 73; Márcardier v. Chesapeake Ins. Co., 8 Cranch, 49; Lea/ry v. U. S., 14 Wall. 610; Hagar v. Clark, 78 1ST. T. 50.) The recovery in the former suit is a bar to this action. (2 T. & S. Pr. 283; 2 Wait’s Pr. 561; Dutch Ch. v. Brown, 54 Barb. 191; Haff v. Myers, 42 id. 272; O'Bairne v. Lloyd, 43 id. 248; Guernsey v. Carver, 8 Wend. 492; Stevens v. Lockwood, 13 id. 644; Bendernagle v. Cocks, 19 id. 207; Jex v. Jacobs, 19 Hun, 105.)</p> <p>It is by no means settled that, even in the case of a demise of real estate, where the premises are abandoned and left to neglect and decay, the landlord may not enter and take possession, letting the premises for the tenant’s account and holding him responsible for any deficiency in the rent. If proper notice is given, that course seems to be open to the landlord. (Ladd v. Smith,, 6 Oregon, 316 ; Walls v. Atcheson, 3 Bing. 462 ; Wood’s Landlord and' Tenant, 844; Bloomer v. Merrill, 1 Daly, 485; Loughran v. Smith, 75 K. Y. 205.) The question in such cases seems to be whether there has been a surrender and acceptance, and in order to effect such surrender, there must be an agreement which terminates the lease. (Bedford v. Terhune, 30 H. Y. 44.) The law imposes the active duty upon the party subjected to in jury by the breach of an agreement to render his damages as light as possible. (Hamilton v. McPherson, 28 1ST. Y. 72; Hecksher v. McPay, 24 Wend. 304; Cla/rk v. Marsiglia, 1 Denio, 317; Dillon v. Anderson, 43 H. Y. 237; Howard v. Daly, 61 id. 362j Polk v. Daly, 14 Abb. [hT. S.] 156.) Courts of justice are not inclined to construe a charter-party as a demise of the ship. (Richardson v. Windsor, 3 Cliff. 396.) When the charterer fails to supply a cargo, or refuses to perform the charter-party, it is the duty of the owners to secure new freight or a new charterer with as little delay as possible. (Baetjer v. Bors, 7 Ben. D. C. 289; Ashburner v. Balchen, 7 hi. Y. 262; Duffy v. Hayes, 15 Johns. 321; Abb. on Ship. 411; Murrell v. Whiting, 32 Ala. 54.) The claim in suit not having matured at the time of the commencement of the former action it is not barred thereby. (Beach v. Grain, 2 Comst. 96 ; Reformed Oh. v. Brown, 54 Barb. 194; Stowell v. Chamberlain, 60 N. Y. 272.) This action is to recover for damages sustained by the plaintiffs in consequence of the breach of the appellant’s contract by the neglect and disuse of the barge and is entirely distinct and different from that for which the former recovery was had. (Perry v. Dickerson, 85 H. Y. 345 ; Palmer v. Hussey, 87 id. 303.)</p>

(Reported below, 29 Hun, 426.) This action was brought to recover for goods which the complaint alleged were sold and delivered to defendant by plaintiff “ between the 5th day of September, 1882, and the 10th day of December, 1882.” The complaint also alleged that, to induce plaintiffs to give the credit, defendant, in April, 1882, represented that he was solvent and worthy to be trusted; that he knew said statements to be false when he made them, as he knew at the time that…

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 11, 1883, denying a motion for a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The court, having found that there was no covenant to pay on the part of the defendant Goodrich, should have dismissed the complaint as to him. (Phelps v. Viseher, 50 hi. Y. 69.) The covenants in the agreement are not independent ones, but the covenant to pay is dependent on the covenant to support. (Thorp v. Thorp, 1 Salk. 171; Lester v. Jewett, 11 hi. Y. 456.) The plaintiff, having committed a breach of his agreement, cannot invoke the aid of the court to enforce it against the defendants. (Dunham v. Koran, 8 hi. Y. 508; Lester v. Jewett, 11 id. 456.)</p> <p>Plaintiff having performed all he had agreed to do when the satisfaction-piece was delivered, and the defendants having received the full benefit of the satisfaction of the mortgage, there was no power on the part of the plaintiff or Samuel Cornell to recall the $2,000 or the mortgage. (Tompkins v. Elliott, 5 Wend. 496 ; Pursall v. Erazee, 14 Barb. 564; Payn v. Brown, 37 hi. Y. 228.) The claim that defendant Goodrich made no covenant to pay plaintiff is untenable. (Booth v. Cleveland Kill Co., 74 ¡N*. Y. 15; Jones v. Kent, 80 id. 588.) The covenant on the part of the plaintiff inures to the benefit of Samuel, and can be enforced by him. (Fox v. Lawrence, 20 3ST. Y. 268; Barr v. Beers, 24 id. 178; Ualliway v. Brayman, 42 id. 316; Thayer v. Marsh, 75 id. 340; Little y. Bemits, 85 id. 258.) The agreement to support Samuel as long as the money was paid was to protect plaintiff against the possibility of the failure of the fund; and second, to induce Samuel to give the satisfaction-piece,, and this Samuel can enforce. (Fox v. Lawrence, 20 hi. Y. 268; Burr v. Burr, 24 id. 178 ; Ualliway v. Brayman, 42 id. 316; Thayer v. Marsh, 75 id. 340 ; Utile v. Banks, 85 id. 258.) There is no obligation on the part of the plaintiff to any one to do any thing more than he has; his house was and is open to Samuel for support, and he was not required to do more even to defend himself in an action by Samuel. (Pool v. Pool, 1 Hill, 580 ; McKillup v. McKillup, 8 Barb. 552; Uawley v. Norton, 23 id. 255; Loomis v. Loomis, 35 id. 624; Kelly v. Babcock, 49 27. Y. 318.) The defendants’ contention that plaintiff’s action is an action at law, and it is, therefore, error to grant equitable relief is untenable. (Stevens v. The Mayor, 84 27. Y. 296 ; Jones v. Butler, 20 How. Pr. 189; Murtha v. Curley, 90 27. Y. 372.) It is sufficient if the legal effect of a transaction be set forth in a pleading. (Brown v. Champlin, 66 27. Y. 214; Conaughty v. Nichols, 40 id. 83.) If the action is one for equitable relief, and justice has been done, a new trial will not be granted. (Foot v. Becker, 12 Hun, 370; Patterson v. Copeland, 52 How. Pr. 460.) The defendant Goodrich having received the money under the contract, and having refused to pay it over to the plaintiff on demand, is liable for a breach of trust. (Smith v. Frost, 70 27. Y. 65; Bennett v. Austin, 81 id. 300, 302, 303, 304.)</p>

The appellant, at a court of Oyer and Terminer, held on May 24, 1883, in the county of Queens, Second Judicial Department, was convicted of murder in the first degree in killing one Richard Oomisky, in the manner charged in the indictment, etc. The judgment of conviction was affirmed by the General Term, on December 11, 1883. The act of killing and by the means charged, were not controverted upon the-trial, but the appellant interposed insanity as a defense.

This action was brought to recover damages for the alleged conversion of a $500 United States bond belonging to plaintiff. The material facts are stated in the opinion. The renewal by Drake and the continuation of the bond as collateral was not payment, and if done without the authority of Burnap, the latter could have redeemed her bond and held Drake upon the liability for which the first note was given.

The nature of the action and the material facts are stated in the opinion. The heirs cannot bring partition because the will has already converted the real estate into personal by a peremptory direction to sell. (Morse v. Morse, 85 1ST. Y. 53.) The power to sell in this case is imperative and does not depend upon the will of the grantee. (1 R. S. 734, § 96.) The fact that the trustee had a discretion as to the time and manner of sale does not prevent it from being imperative.

<p>The provision of the State Constitution (Art. 8, § 10), prohibiting, with certain exceptions, the giving or loaning of the money of the State “ to or in aid of any association, corporation or private undertaking,” has. reference to money raised by general taxation throughout the State, or revenues of the State, or moneys otherwise belonging to the State treasury or payable out of it. The fact that money is raised by local taxation by the supervisors of a county, pursuant to an act of the legislature, does not make it money of the State.</p> <p>The objects of the plaintiff’s corporation are to receive and adopt, keep, support and educate orphan or friendless children, etc.; also to receive for training and education the children of poor clergymen. By chapter 775, Laws of 1868, the several magistrates of the city of New York are authorized to commit to plaintiff’s charge such orphans or friendless children as may come under their jurisdiction, and the commissioners of charities and correction are authorized to transfer to it eligible orphans and friendless children. By chapter 269, Laws of 1871 (§ 1), plaintiff is authorized, with the approval of said comnpssioners, the surrogate or the mayor, to place at service children so committed to its charge, and the board of supervisors is required to levy and collect, by tax upon the taxable property of the city and county, $5,000 annually, and pay the same to plaintiff, “ to be applied to the purposes and objects of said corporation. ” In an action brought to recover payments so required to be made, held, that this requirement was not abrogated by said constitutional provision, nor is it violative of the clause of the Constitution (Art. 8, § 11), prohibiting counties and cities from giving their moneys in aid of any individual, association or corporation, for the support of their poor “ as may be authorized by law”;'that caring for the poor of the city through the instrumentality of private corporations was not prohibited, and the legislature had power to authorize the city to provide for the burden assumed by plaintiff and cast upon it by the act of 1868 by payment of a gross annual sum; nor was it essential to the validity of the appropriation that the corporation to whom payment was authorized should be one whose corporate powers were restricted to the receipt and support of city and county poor.</p> <p>Plaintiff claimed to recover the annual payments so authorized, for five years. It appeared that for two of those years no tax had been levied to raise the sum required; also that during two other years plaintiff wholly suspended its operations, and was not in a condition to, and did not receive any destitute children, so authorized to be committed, to its charge. Held, that it was not entitled to recover for those years.</p> <p>It appeared that the persons who were acting as plaintiff’s trustees during the year for which it was held entitled to recover were, in an action of quo warranto, brought by the present trustees, adjudged not to be entitled to the office. Held, that plaintiff was not prevented from claiming the benefit of operations carried on in its name and behalf; and that in this • action it had ratified and adopted them.</p>

Appeal by defendant William A. Hooglilcerk from a judgment of the general term of the Supreme Court in the Third Department, of January 30, 1884, affirming a judgment of the court of Oyer and Terminer of Albany county, Hon. A. M. Osborn presiding, convicting defendant of arson in the third degree, committed January 2, 1883. The indictment against defendant was- found September 15, 1883.

This action was brought to obtain a judicial construction of the will of William Wager.. The testator left-him surviving the defendant,' Eliza H. Wager, his widow, the plaintiffs, who are his brother and sisters, and the defendants other than Eliza H. Wager, who are his nephews and nieces. The testator’s daughter, Susie E. Wager, died three days before her father.

which denied said motion. This action was brought against defendant as sheriff of the city and county of New York, to recover damages for alleged trespass in seizing and carrying away certain property belonging to plaintiff. The answer alleged that the property was levied upon by defendant under and by virtue of an attachment issued to defendant, as sheriff, against one Rice, whom plaintiff alleged to be his assignor.

(Reported below, 29 Hun, 239.) This action was for the foreclosure of a mortgage executed by defendants Wood and others to John P. Brooks to secure a note, and by him assigned to the plaintiff.

Appeal by the defendant, Joseph Boric, from an order and judgment of the General Term of the Supreme Court in the Fourth Department, made 23rd January, 1884, the order denying the motion of defendant to be discharged from imprisonment, and the judgment affirming a judgment of the Erie Oyer and Terminer, of May 3, 1883, convicting defendant of embezzlement under the Peculation Act, L. 1875, eh. 19. For the facts of this case see 1 N. Y. Crim.

(Reported below, 30 Hun, 605.) The nature of the action and the material facts are stated in the opinion. The will of Mrs. Hotchkiss passed all her estate, real and personal, whether embraced in the deed or not. (1 Redf. on Wills, 385, 386.) The limitation over to the surviving brothers and sisters upon the death of any of the children under the age of twenty-one without issue was not void or in conflict with the Revised Statutes as to the accumulation of personal property.

This action was upon a promissory note executed by defendant Lewis 0. Hill, payable to the order of defendant Clayton L. Hill, and indorsed by him. The note was delivered to Milo W. Hill, who plaintiff claimed transferred it to her as security for costs on appeal, in an action brought against her to set aside as fraudulent a mortgage assigned to her by said Milo.

The nature of the appeal and the material facts are set forth in the opinion. The motion is properly made on the ground that the acts under which the application to the court for the appointment of the commissioners was made, and the acts under which all the proceedings herein have been conducted, are unconstitutional and void. (Matter of Qity of Buffalo, 78 H. Y. 362 ; Matter of Dept. Ptiblic Parks, 85 id. 459; Matter. of Appl’n Dept. Pub.

, '■ ¿Appeal from order of the Board of Claims, made September 1883, dismissing a claim against the State presented to it by the appellants, upon the ground that the facts alleged do not constitute a valid claim. The facts alleged are set forth substantially in the opinion. The State did not take a fee in the land. (Mills on Eminent Domain, §§ 50,149,150, 151; Heyward v. Mayor, etc., 7 N. Y. 325 ;■ Brooldyn Parle Gomrnlrs v. Armstrong, 45 id. 241; Wash.

(Reported below, 30 Hun, 326.) The nature of the action and the material facts are stated in the opinion. The conveyance to plaintiff was voluntary and on a valid consideration, and is valid by the laws of this State and of Pennsylvania. ( Van Buskirh v. Warren, 13 Abb. Pr. 145, 161; 2 Keyes, 119 ; 4 Abb. Ct. of App. Dec. 457; 5 Wall. 314; 7 id. 139 ; Oelcerma/n v. Cross, 54 17.

This action was brought upon a bond executed by defendant, given by John A. Thompson, as special guardian appointed in proceedings for the sale of plaintiff’s real estate. The condition of the bond and the material facts are stated' substantially in the opinion. The bond in suit was void for want of an expressed penalty. (Beers v. Shannon, 73 H. Y. 292; Code of Civ.

The nature of the action and the material facts are stated in the opinion.

(Reported below, 17 J. & S. 17.) The complaint alleged that in October, 1868, the defendants requested the plaintiff to purchase, as broker, for them certain wheat of Carlos Cobb, and that the plaintiff, as such broker, did buy for the defendants the wheat for $5,064; that in October, 1868, the defendants paid said Carlos Cobb $1,688, leaving the sum of $3,737 due, which the defendants never paid; that thereafter said Carlos Cobb sued the plaintiff for the price and value of…

<p>Where part oí a statute is unconstitutional, this does not affect the validity of the remainder, unless the provisions are so interdependent that one cannot operate without the other, or are so related, in substance and object, that it is impossible to suppose that the legislature would have passed the one without the other.</p> <p>If when the constitutional portion is stricken out, that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, it must be retained; and this is so although the portion which is condemned is found in the same section with that sought to be retained.</p> <p>Accordingly held, conceding that portion of the provision of the act “ to organize the local government of the city of New York ” (§ 4, chap. 335, Laws of 1873, as amended by chap. 400, Laws of 1878), providing for the election of aldermen in that city, which prohibits the electors from voting for more than two-thirds of the whole number'to be elected, tobe violative of the provision of the State Constitution (Art. 3, § 1), providing that qualified voters “shall be entitled to vote * * * for all officers that now are or hereafter may be elective by the people,” (as to which qucere) this did not affect the validity of the residue of the section or prevent the election of aldermen in the manner specified.</p> <p>In an action to test the right of defendants, who claimed office by virtue of an election under said provision, it appeared that defendants received a majority of the votes ; it did not appear that any voter was deprived of the right to vote for the whole number to be elected. Held, that the evidence failed to disclose any illegality in the election.</p>

(Reported below, 32 Hun, 20.) This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. The evidence, so far as material to the question discussed, is stated in the opinion.

1279 of the Code of Civil Procedure. The facts submitted are substantially set forth in the opinion. A set-off could be allowed against the receiver. (2 R. S. 464, m. p., § 42; id. 469, m. p., § 68; In re Van Allen, 37 Barb. 225; 2 R. S. 47, m. p., § 36; Holbrook v. Redr Am. F. Ins. Go., 6 Paige, 220; Osgood v. DeGroot, 36 N. Y. 348 ; In re Redrs v. Globe Ins. Go., 2 Edw. Ch. 625; New A msterdam Sav. BVc v. Taitor, 4 Abb.

<p>Appeal from judgment of the G-eneral Term of the Supreme Court, in the second judicial department, entered upon an order made the second Monday of September, 1881, which affirmed a judgment in favor of defendants, entered upon an order dismissing the complaint on trial.</p> <p>This action was for an alleged trespass in unlawfully levying upon certain personal property belonging to plaintiff.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The “ usual warrants,” which were admitted to have been issued by the common council, were the warrants which by law the common council was authorized to issue. (Laws of 1881, chap. 461, §§ 12, 13, 14, 20.) The receiver has power to issue his warrant only in case a tax shall remain unpaid at the time it is issued. To issue a warrant for the collection of a paid tax is to do an unlawful and unauthorized act, for which, if injury result to the tax payer, the receiver is certainly liable; and liable, too, not only for the technical trespass, but also for all other damage which his unlawful act may occasion. The receiver is in the position of a judgment creditor who should issue an execution upon a paid judgment. (Laws of 1871, chap. 461, title 6, § 20; Clements v: Clements, 37 hi. Y. 59, 73, 74; Embury v. Conner, 3 id. 511, 522.) The mistake in levying upon plaintiff’s property was actionable. There was no protection to the collector from the similarity of the initials. (People, ex rel. Iiaines, v. Smith, 45 hi. Y. 772, 778; People v. Ferguson, 8 Cow. 102; Farnham v. Hildreth, 32 Barb. 277.)</p> <p>The warrant by the common council protected the collector and the warrant of the collector protected the deputy even if the latter knew it to be void for want of jurisdiction. (Laws 1871, chap. 461, tit.'6, §§ 13, 20; Niagara El. Co. v. McNamara, 50 hi. Y. 653; Chegary v. Jenkins, 5 id. 376; People v. Warner, 5 Hill, 440; Savacool v. Boughton, 5 Wend. 170.) The assessment was sufficient to charge the appellant with taxes. (Van Voorhis v„ Budd, 39 Barb. 479.)</p>

(Reported below, 30 Hun, 322.) The action is in the nature of a quo warranto, brought pursuant to subdivision 3 of section 1948 of the Code of Civil Procedure. The charge is that the defendants are illegally acting as a corporation, under the name and style of “ The United States Medical College,” without authority, and are exercising privileges and franchises not granted to them by law, and the relief sought is to restrain them from so acting.

<p>Appeal from order of the General Term of the Court of Common Pleas in and for the city and county of New York, made November 9, 1883, which affirmed an order of Special Term to revive the action against the executors of defendant Lee, who died after the commencement of the action.</p> <p>This action was brought against defendants as trustees of the Columbia Consolidated Gold and Silver Mining Company, a corporation organized under the General Manufacturing Act, by plaintiff, a creditor of that company, to recover the liability imposed by that act for a failure to make and file an annual report.</p> <p>The cause of action against the trustee is assignable, and survives against the representatives of the trustee under the letter and spirit of the act itself. (Laws of 1848, chap. 40, § 12; 2 R S. [7th ed.j 1733, § 12; Pier v. George, 14 Hun, 568, 571, 572; Garley v. Hodges, 19 id. 187, 188.) The act of 1848 itself gives the right of contribution by one trustee against another. (2 R S. [7th ed.] 1733, § 12; Wehle v. Haviland, 4 Daly, 550 ; Miller v. Fen-ton, 11 Paige, 13 ; Peck v. Ellis, 2 Johns. Ch. 131; Pearson v. Shilton, 1 M. & W. 505.) Section 12 of chapter 40 of the Laws of 1848 is to be regarded as punitive or penal merely in its construction and application in creating the debt or liability of the trustee, by reason of the default to file, etc., the annual report. (Dabney v, Stevens, 10 Abb. [N. S.] 39 ; Squires v. Brown, 22 How, 35; Boughton v. Otis, 29 Barb. 196; Merchants’ B’k v. Bliss, 35 N. Y. 412 ; Bolen v. Crosby, 49 id. 183,187.) The cause of action survives both in favor of the representatives of the creditor, and as against the representatives of the trustee who had become liable for the debt under the statute. (Pier v. George, 86 N. Y. 613 ; Bolen v. Crosby, 49 id. 183 ; Hoag v. Lamont, 60 id. 96-7; Carley v. Hodges, 19 Hun, 187, 188; Bonnell v. Wheder, 1 id. 332, 333, 339, 340; 20 id. 210, 213; Wade v. Kalbfleisch, 15 Abb. [U. S.] 16, 17; Chase v. Lord, 77 H. T. 2, 5, 6.) The debt so created against the trustee may be assigned by the creditor and survives to the representative of the creditor, and an assignment of the claim against the company carries with it the remedy against the trustee. (Bolen v. Crosby, 49 H. T. 183-187; Pier v. George, 86 id. 613; Hoag v. Lamont, 60 id. 96-97; Garley v. Hodges, 19 id. 187-188; Pier v. George, 14 Hun, 568, 571, 572; Bonnell v. Wheder, 1 id. 332, 333, 339, 340; Hegerich v. Keddie, 18 H. T. Week. Dig. 528; Yertore v. Wiswall, 16 How. Pr. 9, 14, 15; Quin v. More, 15 H. T. 432, 434-7.) A statute, or some part thereof, may be penal in one part or in one respect, and remedial in another part, or in another respect. (Sedg. on Const, of Stat. and Const. Law, 32, 310; P. of? G. B. B. v. Muthren, 21 Ohio [1ST. S.], 586; Fish v. Fisher, 2 Johns. Cas. 89.) Penal, as well as beneficial, statutes are to be so construed as fairly to suppress the mischief and advance the remedy, and are never to be so construed as to defeat the object of the statute. (Parkinson v. State, 14 Md. 184; Hoffman v. State, 29 Ala. 40; Bartlett v. Achey, 38 Penn. St. 273; ü. S. v. Stenn, 5 Blatehf. C. C. 512, note; Sedg. on Const, of Stat. and Const. Law [2d ed.], 280 ; id. 282-287, 308, 333, 334.) The cause of action also survives under the Revised Statutes. (3 R. S. 732, §§ 1-2 [6th ed.], m. p. 448; Bank of Gal. v. Qollins, 5 Hun, 212-214; Haight v. Hoyt, -19 1ST. T. 465,474; Groves v. Spur, 58 Barb. 349, 385; Dinning v. Fay, 38 id. 18, 20-23; Byxlic v. Wood, 24 17. T. 607-612.) Even if the trustees were purely and solely wrong-doers, and neither the act under which they organized their company nor the Revised Statutes creates any liability that survives the trustees, yet the cause of action in these cases survive, for the trustee (Lee in common with the others) had, and through him his estate has, the benefit of that which created the debt or liability of the company. (Dinning v. Fay, 38 Barb. 18, 20, 23.)</p> <p>An action like the present could not be revived. (B'h of California v. Collins, 5 Hun, 209.) This is an action to recover a statutory penalty. (Merchants' B’h v. Bliss, 35 H. Y. 412; Wiles v. Suydam, 64 id. 173 ; Fsterly v.- Barber, 65 id. 252 ; Knox v. Baldwin, 80 id. 610; feeder v. BaTcer, 33 id. 156.) In this class of actions the right to enforce the penalty attaches to the ownership of the debt. (Bolen v. Crosby, 49 H. Y. 183-187.)</p>

These are cross appeals from so much of an order of the General Term of the Supreme Court, in the fourth judicial department, made the first Tuesday of January, 1883, as modified an order of Special Term, so far as it fixed the compensation of petitioner as trustee. The material facts are stated in the opinion.

(Mem. of decision below, 17 J. & S. 537.) » ■ This action was brought by plaintiff to recover an alleged balance of salary due him as assistant engineer in the fire department of the city of New York. The material facts are stated in the opinion. Under the city charter heads of bureaus and regular clerks cannot be removed “until they have been informed of the cause of their proposed removal, and have been allowed an opportunity of making an explanation.” {People, ex rel.

<p>False pretenses, What constitutes.—Evidence.</p> <p>To constitute the crime of obtaining property by false pretenses, in addition to proving the false pretenses, and that the money was paid or the property parted with in reliance thereupon and under the inducement thereof, it must also be proved that the false pretenses were made with intent to cheat and defraud another.</p> <p>Whether or not there is a fraudulent intent is to be found as a fact by the jury. It is not a presumption of law, and a charge, which informs the jury that from a certain state of facts the law presumes a fraudulent intent is erroneous.</p> <p>Mere silence and suppression of the truth or withholding of knowledge upon which another may act is not sufficient to constitute the crime of false pretenses.</p> <p>Defendant having stated that he did not intend to defraud complainant in the transaction for which he is on trial, it is error to refuse to allow him to state what his intention was.</p> <p>Where evidence is given by the prosecution of other transactions, tending to show the guilty intent of defendant in regard to the act for which he is on trial, it is error to refuse to allow him to state what was his intention in those transactions.</p> <p>The prosecution cannot derive any benefit from proof showing the contrary of the facts alleged in the indictment.</p> <p>Defendant purchased some railroad stock for complainant, and agreed that he would carry the same for complainant on a margin, complainant to pay for the same by installments. After the receipt of the margin and several installments, defendant, who was at that time solvent, without notifying complainant, sold the stock, and continued thereafter to receive installments of the price from complainant, who was ignorant of the sale, and who received accounts from time to time from defendant by which it appeared that defendant' still was carrying the stock. For the obtaining of one of these latter installments defendant was indicted for false pretenses. Held, that in the absence of representations made by him at the time defendant was not guilty of obtaining this installment of the price by false pretenses.</p>

The material facts are stated in the opinion. Assuming that the water commissioners were by the act in question authorized in their discretion forcibly to take either a fee or an easement in the lands, as is claimed by the respondents, they have by this proceeding taken the fee, not a mere easement. (Laws of 1881, chap. 101, p. 134, §§ 3, 4, 5; People v. Smith, 21H. Y. 595, 597, 598, 599; In re Fowler, 53 id. 60, 62; 15 Barb. 627-641; 2 Barb.

The nature of the action and the material facts are stated in * the opinion. Neither the courts nor the legislature of this State have the power to declare a valid Austrian government bond to be a lottery ticket. If the instrument is a valid government bond at the place of its issue, it remains such wherever it goes, and is protected by the rules of international law. (Soudder v. U. N. B'h, 91 IT.

<p>Appeal from order of the General Term of the Court of Common Pleas in and for the city and county of ¡New York, made February 6, 1884, which reversed a judgment in favor of plaintiff, entered upon a verdict, and granted a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The acceptance was not a bill of exchange, or an instrument for the payment of money only, but a conditional acceptance for which a consideration must be alleged and proved, or a compliance with the conditions precedent established by proof. (Parker v. /Syracuse, 31 ¡N". Y. 376.) Evidence to establish a consideration was proper, and also as to the circumstances under which the order and acceptance were given. (1 Greenl. on Ev., §§ 275, 277, 282, 284, 286; 2 Pars, on Cont. *549, 555, 557; Blossom v. Griffin, 13 ¡N". Y. 573, 574, 577; Baines v. Periné, 12 id. 18, 29; Field v. Munson, 47 id. 221; Baldwin v. Bald, 48 id. 673; De Lavalette v. Wendt, 75 id. 579; Chapin v. Dobson, 78 id. 74; Bickett v. Taylor, 55 How. 126; Jones v. Jones, 18 Hun, 438.) The acceptance was only an equitable assignment of any money due or to become due to Chave. (Munger v. Shannon, 61 27. Y. 251-257, 260; Looker v. Arnoux, 76 id. 397, 400-401; Southard v. Walsh, 77 id. 301-303; Conkling v. Gcmdall, 1 Keyes, 231; Cook v. Satterlee, 6 Cow. 108; Lowery v. Steward, 25 27. Y. 239, 242, 244; Morton v. Naylor, 1 Hill, 583; Parker v. Syracuse, 31 27. Y. 376.)</p>

<p>The complaint, in an action for libel, in which plaintiff described himself as physician and coroner, charged the defendant with publishing in its newspaper a false and defamatory article whereby plaintiff was injured in his professional character. The article was set forth in full; it stated in substance that the body of a farmer, who apparently had been frozen to death, had been found in the highway ; that it had been taken charge of by plaintiff, as coroner, who impaneled a jury and was proceeding with an inquest when a physician, on making a careful examination, pronounced the man alive, and after about twenty-four hours labor restored him to consciousness. No mention was made in the article of plaintiff’s professional character. No malice having been proved on the trial, a verdict was directed for defendant. Held no error; that the article was not susceptible of any construction which would make the words actionable; as they only referred to plaintiff in his official capacity and simply exhibited a prompt and efficient performance of his duties in that capacity.</p>

<p>Under the provision of the act of 1865 (§ 8, chap. 565, Laws of 1865), in reference to laying out and improving certain portions of the city and county of New York, which authorizes such portion, not exceeding one-half of the expense of an improvement made under the act, as the “ commissioners of Central park may deem equitable and may determine," to be assessed upon the owners and occupants of lands benefited, and under the act of 1872 (Chap. 872, Laws of 1872), vesting in the commissioner of public works the power and discretion so theretofore vested in the commissioners of Central park, the j urisdiction of the board of supervisors to lay an assessment for the expense of an improvement, depended upon a prior apportionment by the commissioner of public works of the share of the expense to be charged upon the property benefited; that officer had no power to delegate to others the power so conferred.</p> <p>Accordingly held, where the commissioner of public works simply certified that an improvement of the Boulevard had been completed and accepted the certificate stating the total cost, with these words added, “ the apportionment of the assessment may be made,” that this was not sufficient to authorize an assessment; and that one laid by the board of assessors although for less than half the cost was void.</p> <p>Also held, that the invalidity was not cured by the provision of the act of 1872 (§ 7, chap. 582, Laws of 1872), as amended in 1874 (Chap. 813, Laws of 1874), declaring that an assessment for a local improvement shall not be vacated for any defect, omission or irregularity; as here was a total want of power.</p>

The nature of the appeal and the material facts are stated in the opinion. (Reported below, 31 Hun, 539.) The order of Mr. Justice Barrett was not appealable to the General Term. (Oode, § 2058.) The order of General Term being final and dismissing the proceeding is appealable to this court.

The nature of the action and the material facts are stated in the opinion. The law looks through mere forms to the substance and effect of the entire transaction. {Pratt v. Foote, 9 N. Y. 468 ; 10 id. 601; Beach v. Smith, 30 id. 131-2; Pattison v. Guardians, 1 Hurlst. & Norm. 523, 527.) The provisions of the Code (§ 982) clearly require the trial of the present action in Albany county. ( Wood v. Hollister, 3 Abb.

The nature of the,action and the.material facts are stated in the opinion. Laws 1881, chapter 361, is enacted under the taxing power, and its purpose is revenue. It is not a license law enacted under police power. {People, ex rel. Ins. Co., v. Davenport, 91 FT.

The nature of the action and the material facts are stated in the opinion.

<p>Obscene and Indecent Pictures, &c.—Penal Code, § 317.— Intent.—Evidence.</p> <p>Defendant was indicted under the Penal Code, § 317, for having in his possession, and also for selling, certain obscene pictures. These pictures were produced before the jury, and it was proved that defendant sold them in the ordinary course of his employment as a clerk in a store. The judgment of conviction was affirmed by the General Term, said pictures being also produced before it. On appeal to the Court of Appeals, the record contained no special description of the photographs, except that they represented nude females, and were copies of certain paintings which had been exhibited in the Salon at Paris, and one of them at the Centennial Exhibition in Philadelphia, and that among them were pictures designated by certain specified names. Held,, that if defendant desired to insist that the finding of the jury was unsupported by evidence, on the ground that the pictures themselves showed they were not obscene, it was his duty to make them part of the record, or to give notice to the district attorney to produce them.</p> <p>The proper test of obscenity in a picture or statue is, whether its motive is pure or impure; whether or not it is naturally calculated to excite in a spectator impure imaginations; and whether or not the other incidents and qualities, however attractive, are merely accessary to this as the primary or main purpose of the representation.</p> <p>As the words of the statute are descriptive and in common use, and every person of ordinary intelligence understands their meaning, and readily, and in most cases, accurately applies them to any object or thing involving a judgment as to the quality indicated, the opinions of witnesses, whether experts or not, as to such question, are inadmissible.</p> <p>The testimony of witnesses skilled in matters of art, to the effect that there is a dividing line, as understood by artists, between pure and impure or indecent art, is inadmissible.</p> <p>That the originals of the pictures in question were exhibited at public places of high repute, does not as matter of law forbid a finding by the jury that the photographs were obscene and indecent.</p> <p>There is but little scope for proof bearing upon the issue of obscenity beyond the evidence of the picture itself.</p> <p>There is no exception in the statute by reason of any special intent in making the sale. Its object is to suppress the traffic in obscene publications, and to protect the community against the contamination and pollution arising from their exhibition and distribution.</p> <p>Whether or not a publication is obscene, may in some cases depend on circumstances, as in the case of a medical work for the instruction of medical men.</p>

pry- This action was brought to enforce an oral agreement between the plaintiff and his mother, Maria Mulock, the original defendant, in respect to certain real estate in the city of New York.

The nature of the action is stated in the opinion. Incorporation can be implied from the powers conferred upon a body of men, and no precise form of words is necessary for that purpose. (Angelí & Ames on Corp., § 145; People v. Kelly, 76 1ST. Y. 475 ; Conservators of Tone.

This action was brought against defendants, .who were the trustees of the New York and Brooklyn bridge, to recover damages alleged to have been sustained in consequence of negligence on their part in the performance of their duties as such trustees. The said bridge was opened for public travel May 24, 1883. On May 30, 1883, plaintiff, in crossing over the bridge from New York to Brooklyn, was caught in a crowd, thrown down, trampled upon and injured.

The complaint herein contained substantially these allegations : Plaintiffs held and owned certain shares of the stock of the Suspension Bridge and Erie Junction Railroad Company; said company (styled in the pleadings the bridge company) was organizéd by parties interested in defendant, the Erie Railway Company, and its bonds were guaranteed by that company.

This was an action under the Eevised Statutes for a. limited divorce. Plaintiff obtained a decree in 1869, which gave her the custody of the children of the marriage, but no provision was made therein for her support, or for the care of the children. ■ In 1879 she presented a petition to the court averring a change in defendant’s circumstances, also concealment as to his means when the decree was granted. A referee was appointed to take proof and report as above stated.

<p>Under the provision of the General Manufacturing Act requiring the written assent of stockholders owning two-thirds of the capital stock of a manufacturing corporation, to the mortgaging of its property (Chap. 517, Laws of 1864, as amended by chap. 481, Laws of 1871), such an assent is an indispensable condition of the creation of a valid mortgage.</p> <p>Where, however, a mortgage has been executed without such assent it is validated by a subsequent assent where there are no intervening rights ; such assent makes the instrument, as of the' time, it is given, a valid mortgage.</p> <p>The filing of the assent in the office of the clerk of the county where the mortgaged property is situated is not an indispensable condition to the validity of the mortgage; as against a subsequent mortgagee or purchaser, with notice, the mortgage is valid.</p> <p>It seems, that in such case, if the filing of the assent is essential to complete the mortgagee’s right, this may be done as of the time the assent was given.</p> <p>The act of 1875 (Chap. 88) authorizing the filing of an assent when, by accident or mistake, such filing has been omitted is not a legislative construction of said provision contrary to that above given.</p> <p>A loan of money to pay debts of such a corporation, where the money is so applied, is a debt contracted in the business for which the corporation was organized within the meaning of said provision, and the loan maybe secured by mortgage.</p>

The nature of the action and the material facts are stated in the opinion. The case is reported on a former appeal in 62 27. T. 592. The plaintiff had no right of action in respect of any interference by the defendant with the filling placed on the lots without consent of the common council.

The facts pertinent to the questions discussed are, stated in the opinion, The surrogate erred in holding that the widow, by accepting the provisions of the will for her benefit, is excluded from sharing in the lapsed legacies, as widow or as one of the residuary legatees. (2 Williamson Exrs. 1063 ; 2 Jarman on Wills [5th Am. ed.j, 35,36 ; Bedfield on Wills, 747, 748, §§ 19, 20; Bickerings. Lord Stamford, 2 Ves.

The complaint herein alleged substantially the following facts: Plaintiff, on February 3, 1875, recovered a judgment in the Marine Court of the city of New York against one Levy, and issued execution thereon against Levy’s property to the defend,ant Hillier, then a marshal of the city of New York, who duly levied thereunder upon property of Levy sufficient to' satisfy the same. William 0.

<p>Defendants contracted to sell to plaintiff, and the latter to purchase at a price specified, four thousand tons of steel rails “/. o. b., Continental port. Inspection at makers’ works." In an action to recover moneys paid by plaintiff for the inspection of the rails it was proved that the letters “/. o. 5.” meant “ free on board ” the vessels which were to carry the rails to this country. Held, that after explanation of the letters had been given the contract was clear and unambiguous; that inspection was one of the things to be done in pursuance of the contract, and the expense thereof the same as all other expenses touching performance was to be borne by defendants ; that the meaning could not be changed or varied byparol evidence; and that, therefore, testimony as to a custom of the trade giving a different meaning to the words used was properly rejected.</p>

The nature of the action and the material facts are stated in the opinion. Held: and wras sufficient to confer jurisdiction upon the court to act in any manner whatever, then the court might thereafter make any order necessary to cure any subsequent defects, if any existed in the proceedings.

Toone, entered upon the report of a referee. This action was brought upon a promissory note executed by defendant, Laura Y. Toone, payable to the order of said Clara C. Toone and indorsed by her. The material facts are stated in the opinion. The note dated April 22, and the written statement April 25, the time plaintiff parted-with his money and took the note, should be construed as one contract. {Rogers v. Smith, 47 FT. Y. 324; Harper v. Raymond, 3 Bosw. 29; 7 Abb.

The nature of the action and the material facts are stated in the opinion. There was no delivery of the horse by the husband to the wife at the time of the alleged gift, nor did the plaintiff exercise any command or dominion over the mare, the subject of the pretended gift, all of which were requisite to make the gift valid in law. (Kent’s Comm., § 437; Harris v. Clark, 3 H. Y. 93; 2 Kent’s Comm. 439, 440; Doty v. Wilson, 49 H. Y. 580 ; Brinckerhoff v. Lawrence, 2 Sandf.

<p>After the completion of an assessment-roll, and formal notice thereof given, the assessors have no jurisdiction to change either the persons or property assessed, or the adjudged valuations, except upon complaint of the party aggrieved.</p> <p>The assessors of the town of Mt. M. intending to assess the relator upon personal property in his hands as trustee, at $40,000, entered it in their roll at $4,000. Before notice of the completion of the roll was given the mistake was discovered; the assessors neglected to correct it. After the roll was certified to as complete and formal notice thereof given, and after the expiration of the time allowed for such completion, hut before the day for review, one of the assessors changed the assessment to $40,000, which act his associates afterward ratified and approved. The relator, upon the review day, for the first time had notice of the change; he demanded to have the assessment stricken out or restored to $4,000, which was denied. In proceedings to correct the assessment, held, that the mistake was not a mere clerical error, but one of pure negligence, which concerned the very substance and extent of the assessment, and that the relator was entitled to have the assessment reduced to the original amount.</p> <p>It seems that even a clerical error, if it affects the substantial rights of a party, will not he corrected by the courts without notice to him, and that for such full and regular period as the law prescribes.</p>

(Reported below, 31 Hun,-107.) This action was brought to recover the amount of a judgment which had been recovered against and paid by plaintiff in favor of Helena M. Hart for injuries caused by falling into an excavation made by defendant in the sidewalk of one of plaintiff’s streets, adjacent to premises owned by defendant, upon which it was erecting a bank building.

This action was brought to recover the amount paid by plaintiff to def endant for certain bonds of the Erie and Genesee Valley Railroad Company. The road of said company had been leased to defendant, and he had guaranteed to the company the ultimate payment of said bonds.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made October 26, 1883, which reversed, on questions of fact as well as of law, a judgment in favor of plaintiff, entered upon the report of a referee, and granted a new trial.</p> <p>This action was brought to recover the contract-price for ten thousand water meters alleged to have been sold and delivered to defendant by Jose F. Navarro, plaintiff’s assignor. The material facts are stated in the opinion.</p> <p>The declarations of agents as to past transactions are never admissible and were properly disregarded by the referee. {Utter v. R. R. Go., 6 Daly, 227; War tional B’Tc v. Ocean Hie, 60 N. Y. 278; Hopypy v.' Mosher, 48 id. 313;. Anderson v. R., W. db 0. R. R. Go., 54 id. 334; Wallis v. Ramdall, 81 id.'164.) It was not necessary before letting the contract to advertise for bids. {People v. Van Wort, 64 Barb. 205 ; Oreen v. Mayor, etc., 60 N. Y. 303,312 ; Peopie v. Flagg, 17 id. 584; Harlem G. L. Go. v. Mayor, eto., 33 id. 309, 310, 320.) This court adhered to this doctrine in Nelson v. Ma/yor, etc. (63 If. Y. 535) ; Cleveland Go. v. Met. Gomm'rs (55 Barb. 288); Trundy v. Nort (65 id. 331); Matter of Dugro (50 IT. Y. 513); Kingsley v. Gity of Brooklyn (78 id. 213). If a referee’s decision is not against the weight of evidence, or might well have been either way, or the evidence is slight that leads to a contrary conclusion, the appellate court should not disturb it. ( Westerlo v. De Witt, 36 If. Y. 340; Parrott v. Knickerbocker Ice Go., 46 id. 361; Grane v. Bandouine, 55' id. 256; F. JR. B'k v. Gore, 57 id. 598; Godfrey v. Moser, 66 id. 250; Schujltz v. Hoagland, 85 id. 468; Sherwood v. Harris, 94 id. 626; Kingsley v. Gity of Brooklyn, 78 id. 215; Code, § 1338; Boosa v. Smith, 17 Hun, 138; Stuckey v. Mather, 24 id. 461; Baker v. Gutting, 2 Sweeny, 435; Smith v. Hathorn, 25 Hun, 159; Adee v. Demorest, 54 Barb. 433 ; Schultz v. Hoagland, 85 If. Y. 468.) The defense that the contract is illegal, because not founded upon bids or proposals, and not approved by the corporation counsel, is untenable. (People v. Van Nort, 64 Barb. 205; People v. Green, 2 T. & 0. 62; Green v. Mayor, etc., 60 If. Y. 303.) The charter of 1870 operated as a repeal by implication of the act of 1861, upon the principle that where the latter statute, not purporting to amend the former one, covers the whole subject, and it is apparent it was intended to be a substitute for all laws on the subject, it repeals necessarily the former one, even though not entirely inconsistent with it. (Heckman v. Pinkney, 81 H. Y.'211; People v. Brooklyn, 69 id. 605; Burroughs v. Brinkerhoff, 68 id. 259 ; In re Bobbins, 82 id. 131, 137.) The provisions of the statute under which this contract was made, were special, and expressly gave discretion incompatible with letting to the lowest bidder. (Green v. Mayor, 60 If. Y. 318; People v. Van Nort, 64 Barb. 208; People-?. Flagg, 17 If. Y. 584; Harlem Gas Go. v. Mayor, 33 id. 309, 330; Farmers' JL. & T. Go. v. Mayor, 4 Bosw. 80; 33 If. Y. 324, 329, 330 ; Detwiller v. Mayor, 1 T. & 0. 657; In re Dugro, 50 If. Y. 513 ; People, <3* rel. Trundy, v. Wort, 65 Barb. 331.) The defense that the water meters were not suitable for the purpose specified by the act authorizing their purchase is untenable. (People v. Van Wort, 64 Barb. 205 ; Kingsley v. City of Brooklyn, 78 27. Y. 215 ; Bex v. Ma/yor of London, 3 B. & A. 371; Platt v. Monroe, 34 Barb. 293.) The defense that there was not, at the time of making the contract or since, any appropriation to pay for the meters is not available. (Welson v. Ma/yor, 63 N. Y. 535; People v. Green, 64 id. 499; 2 T. & C. 64; Baldwin v. Oily of Oswego, 1 Abb. Ct. of App. Dec. 62.) While it is true that under express statutes forbidding a contract, where there is no appropriation, a contract made in the absence of appropriation is void. (Donovan v. Mayor, 33 27. Y. 291, 293.) Yet a new legislative authority to contract, without any such express restriction, takes the particular work out of the general rule, and implies the power to contract irrespective of the general restrictions, and dispenses with the necessity for a previous appropriation. (Greene v. Ma/yor, 60 27. Y. 303; Welson v. Ma/yor, 63 id. 535, 538; People, ex rel. ’ Bohaick, v. Green, 64 id. 499; People, ex rel. Wmcurro, v. Green, 2 27. Y. Sup. Ct. 62; People, ex rel. Wma/rro, v. Van Wort, 64 Barb. 205; People, ex rel. Murphy, v. Kelley, 5 Abb. 27. 0.383; Lawrence v. Mayor, 54 How. Pr. 255,259; 2 Laws of 1871, chap. 583, p. 1268.) The Two Per Cent Act (Chap. 582, Laws of 1871) was void, being in conflict with the constitutional provision that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. (Const., art. 3, § 16 ; Huber v. PeopU, 49 27. Y. 132, 135; People v. O'Brien, 38 id. 193; People, ex rel. Adsit, v. Allen, 42 id. 378; Gaskim, v. Meek, 42 id. 186; In re Meyer, 50 id. 504; People, ex rel. GUy of Bochester, v. Briggs, id. 553; People, ex rel. Davis, v. Commissioners of Taxes, 47 id. 501; Pulhna/n v. Mayor, etc., 54 Barb. 169; People, ex rel. McOonville, v. Hill, 35 27. Y. 449; People, ex rel. Lee, v. Supervisors of Ohautaugua, 43 id. 10; Sun Mutual v. Mayor, 8 id. 421; Halstead v. Mayor, 3 id. 437; People, ex rel. Morris, v. Edmonds, 15 Barb. 529.) The contract was not void as against public policy. (Lyons v. Mitchell, 36 E. Y. 235, 242.) Want of knowledge on part of city officials as to the invalidity of the contract is immaterial on question of acceptance. (Dutchess Go. v. PLardi/ng, 49 E. Y. 321.) The defendant never having offered to return the meters, or any one of them,, cannot now object that the accepted meters were not made as the contract required. (Gurney v. At. Ry. Go., 58 E. Y. 358; Day v. Pool, 52 id. 416; Muller v. Eno, 14 id. 601; Yoorhees v. Earl, 2 Hill, 288; Ga/ry v. Gruman, 4 id. 625; Ezema/n v. Casella, L. B., 2 O. P. 431, 677; Messmore v. N. Y. Shot Go., 40 E. Y. 422; McOormick'v. Sarson, 45 id. 265; Reed v. Rcmdall, 29 id. 358 ; Foot v. Benfly, 44 id. 166; Rust v. Eckler, 41 id. 488; Dutchess Go. v. DLo/rding, 49 id. 321; Gaylord v. Allen, 53 id. 515 ; Dounce v. Dow, 64 id. 411.) This case, notwithstanding the large amount involved and that a city is one of the parties to the contract, is to be tried like any other case. The amount makes no difference, and a city is to be treated like any other party. (Arredondo Case, 6 Peters, 691-716; People v. Stephens, 71 E. Y. 529.) The contract was not under seal, so far as the corporation was concerned. The seal of the agent is not the seal of the corporation. {Dubois v. D. <& H. G. Go., 4 Wend. 285; Parrón v. Sherwood, 17 E. Y. 227.) A defense that plaintiff’s patent is invalid could only be made in a case of a sale of a patent itself. {Ma/rston v. Swett, 66 E. Y. 206; 82 id. 526, 533; Jones v. Burnham, 67 Me. 93 ; Dawes v. Purser, 38 Eng. L. & Eq. 48; 6 El. & Bl. 930; Eallv. Gonder, 38 Eng. L. &Eq. 253; 2 O. B. [E. S.] 22; 3 Jurist [E. S.], 963.) To make the admissions or declarations of one person, not a party to the action, evidence against another, they must be shown to be in a conspiracy together. {Ouyler v. MeGariney, 40 E. Y. 221"; Ormsby v. People, 53 id. 472 ; People v. Davis, 56 id. 102 ; Place v. Minster, 65 id. 89; Miller v. Ba/rber, 66 id. 558; N. Y. G. (& 1. Go. v. Gleason, 78 id. 505.) An agent’s declarations are only admissible if made while he is agent and touching the subject-matter of his agency. {Thallhei/mer v. Bri/nkerhoff, 4 Wend. 394; Wébb v. Alexander,^ id. 281; Warner v. Warren, 46 E. Y. 228 ; Baptist Ch. v. Brooklyn Ins. Go,, 28 id. 153; Luby v. 77. .72. 72. 72. Ch., 17 id. 131; Story on Agency, § 135 ; Bobinson v. Morgan, Littel’s Sel. Cas. 56 ; White v. Miller, 71 E. Y. 118 ; First TV". 7?’& v. Ocean Bis, 60 id. 278; Hamilton v. TV., É. ¿7. 7?. A?. Co., 51 id. 100; Anderson v. 72., TV. cb C. 72. 72. Co., 54 id. 334; Johnston v. Thompson, 23 Hun, 90; Marshuetz v. McGreevy, id. 408; People v. Paris, 56 id. 95, 103 ; Milbank v. Pennistoun, 10 Bosw. 382; CoZor TYy. Co. v. Brown, 37 Supr. Ct. 433; Wallis v. Bandall, 81 E. Y. 164; Bawls v. 7W. Co., 27 id. 282; Noyes v. Phillips, 16 Abb. [E. S.] 400 ; Dutchess Co. v. Harding, 49 E. Y. 321.)</p> <p>Chapter 308 of the Laws of 1861, page 738, and also section 104 of the charter of April 5, 1870 (Laws of 1870, p. 39), was in force on August 21, 1871, not having been then repealed expressly or by implication. (People v. Van Nori, 64 Barb. 209.) Section 5 of the Two Per Cent Act of 1871 (chapter 583, Laws of 1871) deprived the commissioner of public works of the power to make the contract in question, without a previous appropriation, and no such previous appropriation having been made, the contract imposed no liability upon the city beyond what it in fact collected. (64 Barb. 209; Nelson v. Mayor, 63 E. Y. 543 ; Smith v. Newburgh, 77 id. 137.) The acts described in the answer, and constituting what is spoken of as an acceptance, were not the acts of any agent of the defendant authorized to. commit the defendant to an obligation to pay. (People v. Green, 2 T. & C. 62.) If the contract was authorized by law, and the defendant has received nothing to enable it to comply with its terms, the plaintiff cannot recover. (Smith v. Newburgh, 77 E. Y. 137.) Such acceptance as was stated in the answer and shown by the proofs did not preclude the defendant from claiming that the meters were not made in com formity with the contract, and were incapable of doing the work imposed upon them. (Hawkins v. Pemberton, 51E. Y. 198; Van Wyck v. Allen, 69 id. 67; White v. Miller, 71 id. 118; Brown v. Colie, 1 E. D. Smith, 265; Adams v. Mayor, 4 Duer, 295 ; Smith r. Brown, 17 Barb. 431; Hatch v. Peet, 23 id. 575 ; Hosley v. Black, 28 17. Y. 438; Brown v. PPhSsr, 38 id. 187; Lamb v. 72. i?. <7o., 46 id. 278; Muller v. Tifou, 14 id. 597; Bust v. Eckler, 41 id. 488; Dutchess Go. v. Harding, 49 id. 321; v. YW, 52 id. 420; PaWks v. Mee Tool Co., 54 id. 536; Dou/nce v. Dows, 57 id. 76; Gurney v. 72.72. So., 58 id. 362.) The proved breaches of warranty and the proved uselessness of the meters should have rediiced the plaintiff’s recovery, if they did not defeat it wholly, either to the cost of the meters to himself or to their value to the defendant. (Gwrney v. 72.72. Co., 5817. Y. 362; Stone v. Frost, 61 id. 614; Nichols v. Townsend, 7 Hun, 376; Gautier v. Douglass Co., 13 id. 525; Butler v. Kellogg, 4 Daly, 108; Marshuetz v. McGreevy, 23 Hun, 408.) The evidence proved that while the meters delivered to the defendant were a fraud upon the contract, the contract itself was a fraud upon the city. (U. S. v. Arredonda, 6 Peters, 691; In re Binvnger, 7 Blatchf. 277.)</p>

(Reported below, 26 Hun, 496.) This action was brought to restrain defendant from entering upon plaintiff’s lands, and erecting or repairing a dam thereon, and to recover damages for alleged trespass. The facts as found by the court are substantially as follows: On the 3d day of November, 1869, one James Hogan was the owner in fee of the lands now of the plaintiff and defendant.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 11, 1883, which affirmed a judgment in favor of defendant, entered upon a verdict and affirmed an order and denying a motion for a new trial.</p> <p>This action was brought upon two policies of insurance issued by defendant upon the life of Wisner Murray.</p> <p>The material facts are stated in the opinion.</p> <p>Where there is no conflict in the evidence upon a material point, the question whether it is sufficient to support the verdict is one of law, and may be considered at any stage of the action. (.Hatpin v. Third JR. JR., 40 N. Y. 175 ; Corning v. T. I. <& JUT. F. Ave., 44 id. 577; Code of Civil Pro., § 1337.) The true interpretation and meaning of the policies is that the death must occur as the natural result of the assured engaging in a violation of. the law, or follow as a natural consequence of such violation. ('Goetzma/n v. C. JL. Ins. Co., 3 Hun, 515; Bradley v. Mut. Ben. Ins. Co., 45 F. Y. 422; Cluff v. Mut. Ben. Ins. Co., 13 Allen, 318.) The court erred in overruling plaintiff's objection to the reception of the general verdict until the questions submitted by the court were passed upon and determined by the jury, and her request that the jury be required to retire and pass upon those questions. (Code of Civil Pro., § 1187; Ebersole v. JJf. By. Co., 23 Hun, 114.)</p> <p>The court did not err in charging that it was not necessary for the jury to find, in order to avoid the policy, that the shot which killed the insured was fired in self-defense, and “ that the death followed the assault as its natural and necessary result.” (Oluff v. Mut. B. L. Ins. Go., 13 Ala. 308; 99 Mass. 317; 3 Lans. 347; 45 M. Y. 430-432; Goetzman v. Conn. Mut. L. Ins. Go., 5 Bigelow’s L. Ins. Cas. 328; Shaler v. Railway Pass. Asso’n Go., id. 331; Hill v. Hartford Aeo. Ins. Go., 22 Hun, 187; 19 id. 350.) The charge that the policies in question “ may be void, whether this violation, of itself, gave the right to take life or not,” was correct. (Addison on Torts, 735; Bussell on Crimes, 49-50; Reg. v. Jackson, 7 Cox’s C. C. 357; Rex v. Towle, B. & B. 314; Wixon v. People, 5 Park. Or. 129; U. S. v. Sharp, 1 Pet. O. O. 126.) If there is any error in any of the detached phrases of the charge, such error will be disregarded, if the charge as a whole is correct, and if such phrases, in their respective connections, are properly explained to the jury. (Sperry v. Miller, 16 M. Y. 407; Gald/wéll v. H. J. Steamboat Go., 47 id. 286; Ayrault v. Pacific B’k, id. 570-6; Schile v. Brockhaus, 80 id. 620.) The court committed no error in receiving the general verdict of the jury without definite answers to the questions submitted, and in refusing to send the jury back to further deliberate upon the questions. (Bogert v. Vermilyea, 10 N. Y. 447; Code, § 1187; Ebersóle v. N. G. R’y Go., 23 Hun, 114.)</p>

This was an appeal from an order of General Term reversing an order of Special Term, which awarded a peremptory mandamus requiring defendant as treasurer of Albany county, to pay to relator his salary as clerk of the coroners of Albany county. 1 The board of supervisors of said county passed a resolution December 22, 1882, by its terms authorizing the coroners of the county to employ a clerk at a salary of $1,200; the relator was appointed as such clerk.

The complaint in this action alleged in substance that the parties were originally partners ; that upon the dissolution of the partnership they had an accounting and settlement of the firm account, by which it was found that defendant was indebted to plaintiffs in the sum of $16,000, which sum plaintiffs sought to recover. The defendant set up an agreement executed on the dissolution, which he claimed was a release.