Volume 98 — New York Reports

(Reported below, 32 Hun, 17.) An attachment was issued in this action against defendant, a resident of the State, on the ground, and upon proof, showing that he had departed therefrom with intent to defraud his creditors, or to avoid the service of process, or kept himself concealed therein with such intent. The attachment was levied upon the real estate in question. The summons was served-by publication.

<p>The act of 1867 (Chap. 399, Laws of 1867),’incorporating the New York Bridge Company, does not authorize the obstruction, by placing columns or pillars thereon, of any street crossed by approaches to the bridge. On the contrary, it prohibits any such obstructions and requires the supports to the “ arch or suspended platform ” crossing the street to be located outside of the street lines.</p> <p>Accordingly held, that a writ of mandamus, requiring the commissioner of public works and the department of parks of the city of New York to grant a permit to the board of trustees of the bridge, to enter upon certain streets and erect columns therein to support a platform for the bridge over the streets, was improperly granted; that it could not be sustained upon the ground that the proposed erections would occasion but a trifling obstruction of the streets, as this was not for the trustees or the court to determine.</p>

<p>Where, in pursuance of an order of the Supreme Court confirming the award of commissioners in proceedings under the General Eailroad Act (Chap. 140, Laws of 1850), to condemn lands belonging to the city of New York for railroad purposes, the railroad t company paid over the sum awarded to the city chamberlain, who receipted therefor, — Held, that at least, in the absence of evidence that the city had used, or in some way interfered with the money, such payment and receipt did not deprive the city of its right to appeal from the order.</p> <p>Il seems that under said act (§ 18) a land-owner does not waive his right to appeal from an order confirming an award by receiving the sum awarded; the effect of the payment or deposit, as directed by the order, of ths sum awarded is to divest the land-owner of all interest in the land as well as the use thereof during the existence of the railroad corporation, but it does not deprive either party of the right to app.eal.</p> <p>An order of General Term reversing an order which confirmed an award and directing a new appraisal is not reviewable here.</p>

to be substituted in his stead as defendants herein. (Reported below, 34 Hun, 243.) This action was brought to recover damages for an alleged unlawful taking of a stock of goods and fixtures to which plaintiff claimed title under and by virtue of assignment for benefit of creditors. The property was levied upon by the defendant, as sheriff, by virtue of various attachments issued to him in actions against the assignor. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 10, 1882, which affirmed a judgment in favor of plaintiffs, entered upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>A lawyer, especially one not in active or general practice, has the right to make bargains and purchases, and to act as scrivener between parties, and there can arise no presumption of undue influence, such as exists where the strict relation of attorney and client exists. ( Wendell v. Van Rensselaer, 1 Johns. Ch. 343.) It was error to permit the plaintiff, Alfred Stout, to swear to the fact that he placed all confidence in the defendant. That was a question of fact to be determined by the jury under all the circumstances of the case. It was not a question to be determined by the witness himself. (Fiedler v. Darrin, 50 N. Y. 438 ; Newell v. Doty, 33 id. 83 ; Waugh v. Fielding, 48 id. 681; Denman v. Campbell, 7 Hun, 88 ; Keller v. Richardson, 5 id. 352; Nichols v. Kingdom Iron Ore Co., 56 N. Y. 618 ; Learned v. Ryder, 61 Barb. 552.) A witness must have knowledge of the property in reference to which he testifies, and such knowledge must be of the date of which he assumes to speak. ( Westlake v. St. Lawrence M. Ins. Co., 14 Barb. 206 ; Fowler v. County Com’rs of Middlesex, 6 Allen, 93; Clark v. Baird, 5 Seld. 183, 196 ; Robertson v. Knapp, 35 N. Y. 91; Thorn v. Couchman, 28 How. Pr. 95; Dixon v. LaFarge, 1 E. D). Smith, 722 ; Hagadorn v. Conn. M. L. Ins. Co., 22 How. 249 ; Reynolds v. Robinson, 64 N. Y. 58; Teerpenning v. Corn Ex. Ins. Co., 43 id. 279 ; Sunderlin v. Wyman, 1 Thomp. & Cook, 17; N. Y., L. E. & W. R. R. Co. v. Turner, 14 Week. Dig. 379.)</p> <p>It was not error to permit the plaintiff, Alfred Stout, to answer the question put to him as to placing confidence in defendant. (Ring v. Fitch, 2 Abb. Ct. of App. Dec. 508.) The witness, Pagett, was fully competent to give an opinion as to the value of farms, as he owned this particular farm in 1876, and might have seen it before he bought it. (Bedell v. L. I. R. R. Co., 44 N. Y. 367; Whart. on Ev. [2d ed.], § 446; Jarvis v. Furman, 25 Hun, 391; Judson v. Easton, 58 N. Y. 664; Abbott’s Trial Ev. 310.) If it was claimed that the witness was about to express an opinion founded on Fitch’s testimony, or that of any other witness, he could have asked Pagett about it, have shown the exact fact and then have asked the question that was put. (Seymour v. Fellows, 77 N. Y. 180; S. C., 44 Supr. Ct. 128; McCullom v. Seward, 62 N. Y. 316; Whiton v. Snyder, 88 id. 299 ; . Whitbeck v. N. Y. C. R. R. Co., 36 Barb. 644.) The rights of the plaintiffs as between themselves are not affected by the assignments. The claim was assignable. Alfred had power to assign and the administratrix power to take. (Valentine v. Belden, 20 Hun, 537; Loakman v. Reilly, 95 N. Y. 64; Clark v. Clark, 8 Paige, 152; Cook v. Ryan, 29 Hun, 249.)</p>

This action was brought by plaintiff, as assignor of the Brooklyn White Lead Company, to recover the amount realized on a sale of a quantity of sugar of lead, alleged to have been made by defendants as agents for said corporation. The court found in substance the following facts. On February 17, 1881, one Massey, as receiver in an action pending in the Supreme Court, had in his hands the sugar of lead in question, which he put in the hands of defendants, as brokers, for sale.

Smith, a receiver appointed in this action in place of the executors of the will of Nathan C. Platt, deceased, to sell certain premises of which the testator died seized. Said testator died on or about the 4th day of July, 1863, “ I nominate and appoint my sons William H. Platt, Nathan C. Platt and Spencer 0. Platt executors of this my last will and testament.

The complaint in this action alleged an indebtedness from the defendant Melville to the plaintiff, accruing before the 4th of June, 1869, for which he recovered judgment on the 16th of April, 1881, in the sum of $1,982.60. It was.duly docketed, and after the return of an execution unsatisfied this action was commenced.

(Hem. of decision be-26 J This action was brought upon eight promissory notes exe^ cuted by defendant to his father, D. 0. Squires, who died intestate. Jerome Squires, another son, was appointed administrator of the estate, and the notes, as part of the assets, came into his hands.

Appeal irom judgment oi me General Term of the Supreme Court, in the third judicial department, entered upon an order made September 5, 1882, which affirmed a judgment in favor of defendant, entered upon a verdict. The nature of the action and the material facts are stated in the opinion. Where a judge instructs the jury that they may find a verdict upon either of two distinct grounds, and the charge as to either is wrong, a general verdict cannot be sustained.

(Reported below, 32 Hun, 491.) y The nature of the action and the material facts are stated in the opinion. The law of 1853 establishes a rule which is effective to limit the taxation of the defendant company under the law of 1881. The latter controls the former to whatever extent their subject-matter is identical.

entered upon an order made May 2, 1882, which affirmed a judgment in favor of defendants, entered upon a decision of the County Court of St. Lawrence county on trial without a jury. (Reported below, 27 Hun, 145.) This action was brought originally in justices’ court against defendants as superintendents of the poor of St. Lawrence county, to recover for services rendered upon their employment by plaintiff as attorney in certain bastardy proceedings instituted by them.

These are cross-appeals from judgment of the General Terra of the Superior Court of the city of New Y ork, entered upon an order made the first Monday of November, 1883, which affirmed a judgment in favor of plaintiffs, entered upon the report of a referee. (Reported below, 11 J. & S. 429.) The case is reported on a former appeal, sub nom. Bills v. The National Bark Bank (89 N. Y. 343).

<p>While generally it is for the legislature to determine what laws are required to protect and secure the public health, comfort and safety, under the guise of police regulations it may not arbitrarily infringe upon personal or property rights; and its determination as to what is a proper exercise of the power is not final or conclusive, but is subject to the of the courts.</p> <p>When, therefore, the legislature passes an act ostensibly for the public health, but which does not relate to, and is inappropriate for the purpose, and which destroys the property or interferes with the rights of the citizen, it is within the province of the court to determine this fact and to declare the act violative of the constitutional of those</p> <p>The act entitled “ An act to improve the public health, by prohibiting the manufacture of cigars and preparation of tobacco» in any form in tenement-houses, in certain cases,” etc. (Chap. 272, Laws of 1884), is unconstitutional.</p> <p>The authorities upon the question as to what is within and what beyond the legislative power of police regulation, collated.</p>

This action was brought to recover damages for alleged negligence on the part of defendant, causing the death of a horse belonging to plaintiff. The negligence charged was that defendant’s employes, in changing the location, of a gas-pipe under plaintiff’s barn,, bent the pipe so that it leaked, and the escaping gas killed the horse. The material facts are stated in the opinion.

26 This action was brought by plaintiff to set aside and vacate a tax levied by the board of supervisors of Saratoga county, and to restrain a sale to collect the same.

This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence. Plaintiff was a passenger on a train on defendant’s road and, in attempting to leave the train at the station to which he had bought a ticket, was injured. The further facts, so far as material to the questions discussed, are stated in the opinion.

The nature of the appeal and of the cause of action, and the material facts are set forth in the opinion. defense to the with the exception of a consideration, made actually illegal by statute, such as gambling debts, etc., was utterly ended and extinguished by the fact of a voluntary payment.

2, East river. (Reported below, 32 Hun, 82.)>// The proceedings were institued under chapter 259, Laws of 1882. The power over wharves, slips and piers in the city of Hew York, and the disposition of them in the interest of commerce, has existed and been exercised without challenge from the beginning of the government; formerly by the king through the royal governors, and afterward and now by the State, through the legislature.

This was a partition suit. An interlocutory judgment was rendered therein declaring that a certain mortgage and decree of foreclosure belonging to the defendant Onderdonk were, by force of the statute of limitations, presumed to he paid, and therefore not a lien on the premises in question.

■ Appeal from judgment of the General Term of the Superior Court of the city of Mew York, entered upon an order made December 4, 1882, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.

These are cross-appeals from a judgment of the General Term of the Supreme Court, in the first judicial department, dated May 11, 1882, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. The nature of the action and the material facts are stated in the opinion. The court erred in holding that the three years limitation in favor of the trustees runs from the time the obligation matures against the corporation.

<p>Murder.—Charge.—D etotkeotess.</p> <p>Where the court has, in charging the jury, laid down the correct rule as to insanity, it is not erroneous to refuse to charge that if the jury believe the defendant, at the time of the commission of the alleged act, was suffering from the effects of delirium tremens, or any other species of insanity, they must acquit, as the defendant would not be capable of distinguishing right from wrong or of deliberating or premeditating the act.</p> <p>Where a charge in substance covers a request to charge, the court cannot be called upon to repeat what it has correctly stated.</p> <p>A request to charge that “if in consequence of some disease the defendant had not sufficient use of his reason to control the passions which prompted the act complained of, the jury must acquit," is erroneous in excluding the consideration of the question as to the capacity of the defendant to distinguish between right and wrong.</p> <p>Under the statute, it is the duty of the judge to leave to the jury the consideration of the question of intoxication in determining the motive and intent, and thus whether the defendant acted with deliberation and premeditation.</p> <p>The Court of Appeals, being an appellate court, is confined strictly to a review of the questions of law which appear upon the record, and cannot consider the facts.</p>

2, 1882, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial, without a jury. (Mem. of decision below, 27^1'Iun, 222.) ^ This action was brought against defendant as treasurer of the county of Ulster, to recover the alleged contract-price agreed to be paid by him, as such officer, for publishing notices of tax sales in a newspaper of which plaintiff was the proprietor.

(Mem. of decision below, 31 Hun, 634.) ^ This was an action for the admeasurement of dower. William D. Blackwell died intestate in 1848, seized of the premises described in the complaint, leaving a widow and two children; Joseph, the first husband of the plaintiff, and Letitia A., the wife of Peter Poillon, Jr. Joseph died in 1859, intestate and without issue, leaving plaintiff, his widow, him surviving.

The material facts are stated in the opinion. The facts that the testatrix was very old and feeble, and lived with her son William, and that the will was drawn by a person employed by him, and according to instructions given by him, and that under it he takes one-third of his mother’s property, raise the presumption that the will was procured through his undue influence, and call upon him to rebut that presumption. (Lake v. Ranny, 33 Barb. 49; Lee v. Dill, 11 Abb.

<p>In an action for negligence causing death, the. burden of establishing affirmatively freedom from contributory negligence is upon the plaintiff; and while, although there were no eye-witnesses of the accident, and although its precise cause and manner of occurrence are unknown, absence of contributory negligence may he established, sufficiently to make it a question of fact for the j ury, by proof of such facts and surrounding circumstances as reasonably indicate or tend to establish that the accident might have occurred without negligence on the part of the deceased ; yet if the facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause or occasion therefor which is consistent with proper care and prudence, the inference of negligence is the only one to be drawn, and defendant is entitled to a nonsuit.</p> <p>T. Plaintiff’s intestate was killed at a crossing on defendant’s road. The road crossed the track at an acute angle. There was no obstacle to prevent seeing an approaching train for more than half a mile from the crossing. T. was driving a gentle horse, and the condition of the road was such as to prevent fast driving. The night was dark and misty, hut it appeared by plaintiff’s own witnesses that the head-light of the engine could have been seen at a distance much more than sufficient to have given him warning, and had he been looking, to have enabled him to escape injury. Held, that the evidence was insufficient to make the question of contributory negligence one of fact; and that a refusal to nonsuit was error.</p>

This action was brought by plaintiff, as executor of the will of Charlotte J. Lewis, deceased, to recover damages for the alleged conversion of certain promissory notes belonging to the estate. The facts, so far as material, are stated in the opinion.

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 at the October term, 1883, which denied a motion for a new trial and directed judgment on a verdict. This was an action to recover damages for alleged negligence causing the death of plaintiff’s intestate, who was a laborer in defendant’s employ.

(Reported below, 30 Hun, 94.) The nature of the action and the material facts are stated in the opinion. The deed of Michael Warner to his sons of the 2d of April, 1875, was not such an acknowledgment of the debt as would raise a new promise to the creditor to pay him, and thus save the barring of the debt. (Bloodgood v. Bruen, 4 Seld. 262; Pickett v. King, 34 N. Y. 177; Avery’s Case, 6 Abb. Pr. 147; Henry v. Root, 33 N. Y. 535; Fletcher v. Updike, 67 Barb. 364; Story’s Eq.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 2, 1882, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 27 Hun, 167).</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Whether the acts of subordinate public tribunals or officers, assessors, etc., are invalid, irregular or void, depends entirely on purely legal principles cognizable by courts of law only. Ho equitable principles can be involved, and courts of equity have never exercised jurisdiction in such cases. (Mooers v. Smedley, 6 Johns. Ch. 28; Kilbourne v. St. John, 59 N. Y. 21, 26; Guest v. City of Brooklyn, 69 id. 506; Hyatt v. Bates, 40 id. 166; Whitney v. Mayor, etc., 1 Paige, 548; Livingston v. Hallenbeck, 4 Barb. 16; Phelps v. City of Watertown, 61 id. 121; Mayor, etc., v. Merserole, 26 Wend. 139; Woodruff v. Fisher, 17 Barb. 234; Magee v. Cutler, 43 id. 246; Heywood v. City of Buffalo, 14 N. Y. 538; Bouton v. Brooklyn, 7 How. Pr. 208; Hyatt y. Bates, 40 N. Y. 167; 3 Edm. R. S. 302, 303 ; Laws of 1840, chap. 305; 2 Edm. R. S. 302; People v. Supervisors, 1 Hill, 195 ; Morris v. People, 3 Denio, 395; People v. Stout, 23 Barb. 338, 344; People v. Railroad Co., 57 N. Y. 174; Doolittle v. Supervisors, 18 id. 155; Roosevelt v. Draper, 23 id. 318; People v. Ingersoll, 58 id. 31; People, ex rel. Corwin, v. Walter, 68 id. 403 ; Guest v. Brooklyn, 69 id. 517.) It is a rule in equity that an injunction will not issue or lie, if there is a remedy at law (except in two or three special instances of which this is not one) and the fact that there is no such remedy in law should be stated in the complaint. (Woodman v. Saltonstall, 7 Cush. 183 ; Heywood v. City of Buffalo, 14 N. Y. 541.) Plaintiff had a remedy by mandamus to compel the board of auditors to strike out and disallow any illegal items. (People v. Supervisors, 11 Hun, 306; S. C., 73 N. Y. 173.) If the money levied and collected is paid to the banks and Madden and they have no legal right to it, it may be recovered from them in an action brought for that purpose. (People v. Fields, 58 N. Y. 491; Wood v. Mayor, etc., 73 id. 558 ; 2 Wait’s Pr. 7, 8.) The doctrine of estoppel applies to a corporation as well as to an individual. (Curnen v. Mayor, etc., 79 N. Y. 511; Brown v. Mayor, etc., 66 id. 385.) Town auditors have power to audit and allow all charges and claims payable by their town, and they are to decide what claims are so payable, and their authority or power to allow such claims depends upon whether the town has had the benefit of them and ought to pay them, and not entirely upon the manner they are made out or presented. (Moore v. Mayor, etc., 73 N. Y. 238; Curnen v. Mayor, etc., 79 id. 511; Moore v. Bank, 55 id. 45; Lee v. Tillage of Sandy Hill, 40 id. 452; Lynde v. The County, 16 Wall. 13; People, ex rel. Bank, v. Fitzgerald, 54 How. 1; Gould v. Town of Oneonta, 71 N. Y. 308 ; McNeil v. Bank, 46 id. 325.) The money having been collected, and in pursuance of the statute having been paid to the supervisor for the express purpose of paying it to the parties holding the certificates, he must pay it to them. If he refuses, a mandamus will lie to compel him to do it, or an action will lie to recover the money in his hands, and he, in such proceeding, cannot set up that the tax was invalid, or dispute the right of the claimant to it, but if this judgment stands, he may be compelled to pay it twice. (People, ex rel. Martin, v. Brown, 55 N. Y. 186; Bank v. Wheeler, 72 id. 204.) The board of audit have exclusive authority to act, and, having acted, their decision is final. (Schanck v. Mayor, etc., 69 N. Y. 444.) As it is undisputed that the town received the benefit of the goods purchased and furnished by Eigney for the support of its poor, which support the town was bound to furnish, it must pay, and, if it must pay, it follows that the board of auditors should allow the claim, (Nelson v. Mayor, etc., 63 N. Y. 535 ; Lanigan v. Mayor, etc., 70 id. 454.) The town being liable to pay, it made no difference to it or its tax payers whether the money was paid directly to the overseer- by the collector or to the supervisor, and by him to the overseer. (Boots v. Washburn, 79 N. Y. 213; Martin v. Supervisors of Greene, 29 id. 645 ; Vanderbilt v. Schreyer, 81 id. 648; People, ex rel. Hotchkiss, v. Supervisors, 65 id. 222; People v. Stephens, 71 id. 527, 549.) If under any circumstances the board of auditors had the right to re-examine and reaudit accounts presented and passed upon by them at a previous session, it is to be presumed when they have exercised such right that they did it in a case in which they were authorized to do it. (Hartwell v. Root, 19 Johns. 345; Bolton v. Brewster, 32 Barb. 394; Potter v. Merchants’ Bank, 28 N. Y. 592; Leland v. Cameron, 31 id. 122.) If a tax payer is dissatisfied with the auditing of a constable’s bill, he has a remedy by appeal to the board of supervisors of the county. (Laws of 1866, chap. 832, § 2.) If a bill is not properly made out in items to suit the auditors, or if, from any other reason, they require further evidence, and it is laid over till a subsequent meeting, it can be allowed if j;he omissions are then supplied. (Laws of 1847, chap. 490 ; 1 R. S. [6th ed.] 845.) To audit an account is to thoroughly examine it, compare it with the vouchers and accurately adjust it, and “ if it is for any matter the price of which is fixed by law, by custom, by authority or by contract, the board have no discretion.” It must settle or declare the amount according to such law, custom, authority or contract. (People, ex rel. Supervisors, v. St. Lawrence, 30 How. 181; People, ex rel. Supervisors, v. Otsego, 51 N. Y. 407.) There is no pretense that this was done, and, therefore, there was no legal audit. (People v. Auditors of Elmira, 82 N. Y. 80.)</p> <p>The board of town auditors had jurisdiction and authority to audit all claims properly chargeable against the town. (Laws of 1840, chap. 305 ; 1 R. S. 358, § 2.) The actor decision of a board of town auditors or a board of supervisors in allowing claims properly chargeable against their respective town or county is final, and cannot be reviewed by the courts unless in case of fraud. (People v. Stocking, 50 Barb. 573 ; Chase v. Saratoga, 33 id. 603; People v. Cortland, 58 id. 145 ; People, ex rel. Outwater, v. Green, 56 N. Y. 466 ; Huff v. Knapp, 5 id. 67; Brady v. Supervisors of N. Y., 10 id. 260 ; Brennan v. Mayor, etc., 8 Daly, 426; Martin v. Sup’rs of Greene, 52 N. Y. 224; Supervisors v. Ellis, 37 id. 626 ; Lanigan v. Mayor, etc., 70 id. 454.) The learned court at General Term erred in holding that the bill in question having once been rejected, “ the disallowance is in the nature of a judgment and can no more be reopened and decided some other way than a judgment can,” and that, therefore, the audit was without jurisdiction. (People, ex rel. Hotchkiss, v. Supervisors, 65 N.Y. 222.) It was error to refuse to grant the motion to dismiss the complaint, as it is a rule in equity that an injunction will not issue if there is an adequate remedy at law, and the fact that there is no such remedy should be stated in the complaint. (People v. Supervisors, 11 Hun, 306; People v. Fields, 58 N. Y. 491.)</p> <p>The action, as brought under chapter 161 of the Laws of 1872, is the proper remedy. Newton v. Keech, 9 Hun, 355; Ayers v. Lawrence, 59 N. Y. 192; People v. Com'rs Taxes N. Y., 43 Barb. 444.) The grievance complained of comes within the purview of the statute. (Ayers v. Lawrence, 59 N. Y. 192; Latham v. Richards, 15 Hun, 129 ; Metzger v. Attica & A. R. R. Co., 79 N. Y. 171.) It is not in the power of the board of town auditors to review the action of their predecessors and allow accounts and items rejected by them. Their action in the audit and allowance of accounts is judicial in its nature and final so far as the authority of their successors is concerned. (1 R. S. 366, 367, §4, sub. 3 [Edm. ed. 330]; Thompson’s Supervisors’ Manual, ’67, ch. 5; Lange v. Benedict, 73 N. Y. 12, 32, 33 ; People v. Stocking, 50 Barb. 573, 579 ; People v. Schenectady, 35 id. 408 ; Sterns v. Sternes, 32 Vt. 678, 683; Smith v. Lewis, 3 Johns. 157; Goix v. Low, 1 Johns. Cas. 341.) The only possible effect of the warrant or certificate, after the indorsement by the payee, is to operate as a mere transfer or assignment of the claim, leaving the holder in the situation of all purchasers of a chose in action as having taken it subject to all equities and legal defenses existing at the time of the assignment. (Crane v. Turner, 67 N. Y. 437; Dann v. Austin, 1 Ves. 247; Shaffer v. Riley, 50 N. Y. 61 ; Bush v. Lathrop, 22 id. 535 ; Bullard v. Burgett, 40 id. 314.) In auditing Rigney’s bill, the board of town auditors, in 1878, entirely disregarded the requirements of the law in reference to the production of books and vouchers, and comparison of accounts and charges with them. (Livingston Poor Law, chap. 334, Laws of 1845, § 4.)</p>

The nature of the action and the material facts are stated in the opinion. An action in equity will not lie to restrain the levying and collection of the tax or audits named in the complaint. The plaintiffs, as tax payers, have no standing in court to maintain the action. (3 Denio, 117 ; 33 Barb. 603; 26 id. 118.) The body whose action is sought to lie reviewed is a judicial body.

This action was brought to recover damages for injuries sustained by plaintiff by the falling of a gallery in a building in the city of New York designed for public entertainments, known as Gilmore’s Garden, which building was leased by defendant to one Kelly, for the purpose of giving a pedestrian exhibition therein.

Ajtpeal from judgment of me General Term of the Supreme Oourt, in the fourth judicial department, entered upon an order made June 17, 1884, which affirmed an order of the surrogate of the county of Onondaga denying an application to revoke the probate of the will of Lewis S. Phillips, deceased. The facts, so far as material, are stated in the opinion.

(Mem. of decision below, 32 Hun, 415.) 1-7 7 A Q ÍSÍ This action was brought to recover damages for alleged negligence causing the death of John Powers, plaintiff’s intestate. The material facts are stated in the opinion.

The nature of the action and the material facts are stated in the opinion. The pretended assignment to Brooks, never having been delivered, never took effect.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 31, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>This action Was brought against defendant, as administrator of the estate of James Collingwood, deceased, to recover damages for a breach of a warranty alleged to have been made by Collingwood on sale of an interest in certain property described in a conveyance thereof, executed by said Collingwood to plaintiff, of the body of which the following is a copy:</p> <p>“ This indenture, made and entered into "this 28th day of December, 1872, between James Collingwood, of the city of Poughkeepsie, county of Dutchess, and State of New York, of the first part, and Jeremiah Eighmie, of Roselle, New Jersey, of the second part, witnesseth, that the party of first part, for and in consideration of the sum of six thousand dollars to him in hand paid, the receipt of which is hereby acknowledged, has sold, and by these presents does "hereby sell, assign, transfer and set over unto said party of the second part, his executors, administrators and assigns, all his undivided one-half interest in a certain lease known as lease No. two hundred and seven (207), situate in Triumph tract, Deerfield township, Warren county, State of Pennsylvania, and upon which is located the Oollingwood wells, Nos. 1 and 2, and all the personal property, tools, fixtures, etc., thereon, situate and belonging to the same, and all the oil now stored on said tract, which said first party owns or in which he has an interest.</p> <p>And the party of the second part in accepting said conveyance, and in consideration thereof, hereby covenants and agrees to, and with said party of the first part, his heirs, exécutors or administrators, to assume and perform all the covenants and conditions contained in said lease, and to release said first party of and from any and all liabilities therefrom, and to assume any and all debts or liabilities of any nature whatsoever now existing against said first party by reason of his said interest in said lease, or in working said wells, whether such liability or debt be against said first party singly, or against the firm of Oollingwood & Co., of which he is a member.</p> <p>It being the intent of this instrument, the said Oollingwood, in consideration of said sum of money before mentioned, shall convey to said Eighmie all his right and interest in and to said lease, business and fixtures, and that said Eighmie, in accepting the same, shall release said Oollingwood of and from all liability arising therefrom, he himself assuming the same.”</p> <p>Simultaneously with the execution of this conveyance, plaintiff executed to Oollingwood, in payment of the consideration, an assignment of a bond and mortgage, for the sum of ,$6,000 with interest, with a guaranty of payment, and Oollingwood executed to plaintiff an agreement to pay plaintiff the interest which had accrued at the time of the assignment as soon as collected.</p> <p>Plaintiff alleged and was permitted to prove on the trial under objection and exception, that Collingwood, in the negotiations for the sale, represented and warranted that the wells were yielding at least sixteen barrels of oil per day, and gas or water to supply the engines working them with all necessary fuel, that the oil was then worth $4 per barrel, that the machinery, tools and fixtures were of the latest and most improved patterns, new and in good condition, and that the debts and liabilities did not exceed $1,000, all of which representations and warranties were untrue.</p> <p>All statements and warranties made by Collingwood to Eighmie, or by Eighmie to Collingwood, are merged in the three written instruments executed at the consummation of the sale. As these instruments contain no words of representation or warranty, no parol proof can be given showing such statements or warranties, to enlarge or vary the writing. (Juillard v. Chaffee, 92 N. Y. 534; Mumford v. McPherson, 1 Johns. 413 ; Bayard v. Malcolm id. 452; Niles v. Culver, 8 Barb. 205 ; Filkins v. Whyland, 24 N. Y. 339 ; Foot v. Bentley, 44 id. 166 ; Speckels v. Saxe, 1 E. D. S. 204; Wilson v. Deen, 74 N. Y. 531, 538 ; Green v. Collins, 86 id. 254; Van Vliet v. McLean, 23 Hun, 207.) Writings in the nature of contracts may not be altered or enlarged by parol. (Randall v. Rhodes, 1 Curt. [U. S.] 90; Sennett v. Johnston, 9 Penn. St. 335; Wilson v. Deen, 74 N. Y. 532; Naumberg v. Young, 44 N. J. L. 331; Hei v. Heller, 53 Wis. 415.) Every thing relating to the subject handled in the writing must in the absence of fraud or mistake appear in the paper or it will not be a part of the agreement. (Juillard v. Chaffee, 92 N. Y. 529.) The court erred in allowing the witness Barber to testify as to the flowing condition of the wells on the leased property in August and September, 1873, nine months after the sale. (Sunderlin v. Wyman, 1 T. & C. 17; Flanagan v. Maddin, 81 N. Y. 623.) This action being on contract for breach of warranty and not for fraud or deceit, the same rule would apply as to the damages for breach as for that of title or against incumbrances, viz.: the difference between the price paid and the actual value of the property, in any event not to exceed the price paid and interest for six years. (Dimmick v. Lockwood, 10 Wend. 155; Krumm v. Beach, 96 N. Y. 406.) The court erred in charging the jury that they might compute interest on the damages from the time of breach, in 1872, down to the trial. ( White v. Miller, 78 N. Y. 393 ; Little v. Banks, 85 id. 258; 71 id. 134.) The court erred in admitting proof that the debts assumed and paid by Eighmie were greater than they had been stated by Oollingwood. (McKnight v. Dunlop, 1 Seld. 537; Brooks v. Christopher, 5 Duer, 216; Lathrop v. Bramhall, 64 N. Y. 366 ; Peck v. York, 47 Barb. 131; Sharpe v. Freeman, 45 N. Y. 807.)</p> <p>The trial court properly held that the plaintiff might prove a parol warranty of the capacity, condition and productiveness of the wells, and that if such warranty-was established to the satisfaction of the jury, and damage resulted, the plaintiff was entitled to recover. (Chapin v. Dobson, 78 N. Y. 74 ; Juillard v. Chaffee, 92 id. 529; Remington v. Palmer, 62 id. 33 ; Hope v. Baler, 58 id. 380 ; S. C., 9 Sup. Ct. 458; Van Brunt v. Day, 81 N. Y. 251; Dempsey v. Kip, 61 id. 162; Unger v. Jacobs, 7 Hun, 220; Schenectady v. Queen, 15 Hun, 551; Cassidy v. Begoden, 38 Sup. Ct. 180 ; Lewis v. Seabury, 74 N. Y. 409 ; Lanphire v. Slaughter, 61 How. Pr. 36; Fisher v. Abeel, 66 Barb. 381; Wheeler v. Billings, 38 N. Y. 263; Rexford v. Brunnell, 1 id. 396; Bingham v. Wederwax, id. 509 ; Rosier v. B., etc., R. R. Co., 15 Weekly Dig. 99; Batterman v. Pierce, 3 Hill, 171.) Where there is an agreement of purchase, and a written transfer of the property purchased is made in accordance therewith, it is always competent to prove by parol an independent and antecedent or .contemporaneous promise or agreement of the vendor which induced the purchase and entered into and formed a part of the consideration therefor. (Rosier v. B., N. Y. & P. R. R. Co., 15 Weekly Dig. 99; Witbeck v. Waine, 16 N. Y. 532; Wheeler v. Billings, 38 id. 263; Unger v. Jacobs, 7 Hun, 220 ; Morgan v. Smith, id. 244; Brewster’s F. Ins. Co. v. Berger, 10 id. 56; Adams v. Hull, 2 Denio, 306; Carter v. Hamilton, Seld. Notes, 80 ; Murray v. Smith, 1 Duer, 412.) A party or person interested in the event of an action may testify to a conversation which he overheard between the deceased and a third person, and in which he did not participate. (Gary v. White, 59 N. Y. 326; Hildebrant v. Crawford, 65 id. 107; Head v. Teter, 10 Hun, 548; Nichols v. Van Valkenburg, 15 id. 230; Holcomb v. Holcomb, 20 id. 159; Marsh v. Gilbert, 2 Redf. 465; Gross v. Welwood, 9 Rep. 587 ; Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Bobdell, 36 id. 327.) The acts and declarations of the agent, while engaged in the transaction of the business of his employment and relating directly thereto, are admissible as part of the res gestee. (1 Greenl. on Ev. [4th ed.], § 113, p. 129 et seg.; Low v. Hart, 90 N. Y. 457; Chapman v. Erie R. Co., 55 id. 583; Hunter v. R. I. & M. Co., 20 Barb. 493; Nelson v. L. I. R. R. Co., 7 Hun, 142.) The statements of Collingwood in regard to the market-price or value of the oil constituted a warranty, if the jury found that they were so in tended. (Harris v. Osburn, 6 Weekly Dig. 442; Folon v. Preston, 12 id. 13; Carley v. Wilkins, 6 Barb. 557; Brown v. Tuttle, 66 id. 169.) There was abundant proof upon which to submit to the jury the question of the warranty. (Duffy v. Mason, 8 Cow. 25; Whitney v. Sutton, 10 Wend. 412; Carey v. Wilkins, 6 Barb. 557; Holman v. Doyd, 12 id. 336; Rogers v. Ackerman, 22 id. 134; Wilbur v. Cartright, 44 id. 536; Hawkins v. Pemberton, 51 N. Y. 198.) The court properly charged the jury that, if they found for the plaintiff, they might, in determining the amount of damages, in their discretion add interest by way of damages, if they saw fit to do it. (Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182; Hodge v. N. Y. C. & H. R. R. R. Co., 27 id. 394; Black v. Camden & Amboy, 45 Barb. 40; Walrath v. Redfield, 18 N. Y. 457; Parrot v. Knickerbocker Ice Co., 46 id. 361; Mairs v. Manhattan R. E. Ass'n, 89 id. 498 ; 2 Pars, on Cont. [ed. of 1855] 382; Sedg. on Dam. [4th ed.] 446.)</p>

<p>Where a will directs the executors to keep the funds of the estate invested, it is within their power, if a profitable investment is offered, larger in amount than the available assets of the estate, to supplement them with funds of other parties, if they can be legitimately obtained ; and it is not inconsistent with their duties as executors, to act as trustees of such other parties as to the funds so obtained.</p> <p>The act of any one of two or more co-executors within the scope and authority of his agency is binding upon his associates.</p> <p>In an action brought to have a trust declared in plaintiff’s favor in a bond and mortgage, executed to defendant and to M. as executors, it appeared that plaintiff delivered to M. $2,000, and on the same day the latter, with defendant, loaned $1,800 of this same money, together with $6,000 belonging to the estate and $200 belonging to M., taking as security therefor the bond and mortgage in question. Plaintiff was then permitted to prove, under objection and exception, declarations of M. made in the presence of plaintiff and others soon after the transaction, when she was in feeble health and her early death anticipated, to the effect that she had received the §3,000 to make up the sum loaned, and that plaintiff was to have an interest in the mortgage as security, and to receive her share of the interest as it was paid, and that she intended to make an acknowledgment to that effect in writing. Held, that the evidence was properly received, and constituted a good declaration of trust; that it was an act done in the performance of the executors’ duty, which operated upon, and was enforceable against, the estate to the extent of the money of the plaintiff which was invested in said securities.</p>

(Reported below 33 Hun, 89.) ^ This action was brought by plaintiff as surviving executor of the will of Daniel Fanshaw, deceased, to obtain a judicial construction of his will and directions as to the disposition of so much of the estate as remained undistributed.

The nature of the proceedings and the material facts are stated in the opinion. The rule enacted by the police commissioners was proper and the procedure thereunder sufficed. (People, ex rel. Flanagan, v. B’d of Police, 93 N. Y. 97.) Upon the merits, the court will examine the testimony returned, only so far as to see that it tended to prove the charge, and will not undertake to exercise any judgment upon the weight of testimony.

Appeals from two orders of the General Term of the Supreme Court, in the fourth judicial department, made October 7, 1884, in proceedings instituted by the petitioner above named to acquire a crossing over the tracks of the Syracuse, Binghamton and Hew York Railroad Company and the Delaware, Lackawanna and Western Railroad Company.

The petition alleged, and it appeared that plaintiffs claim was presented at the time And place stated in the statutory notice to creditors to one of the executors, who was named in said notice as the person to whom claims should be presented. That the claim was not rejected, disputed or paid. The claim was against the testator as executor of the will of Horace Wright. Further facts appear in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 9, 1884, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. (Reported below, 33 Hun, 358.)</p> <p>This action was originally brought by John Dikeman, a judgment creditor of Austin D. Moore, Jr., against said Moore and Joseph Hegeman as surviving executor of the will of Austin D. Moore, to recover the accumulations of interest upon a share of the testator’s estate given to the executors in trust for said Austin D. Moore, Jr. The case is reported on a former appeal in 92 N. Y. 508.</p> <p>The plaintiff and defendant Moore having died during the pendency of the action, their legal representatives were made parties, and Edward D. Moore, a son of said defendant Moore, and others claiming interests under the will, were brought in as parties defendant.</p> <p>Austin D. Moore, Sr., died in 1857, leaving a will, which was duly probated. He directed thereby that his residuary estate should be divided into three equal shares, one to be held in trust by his executors for each of his children during life, the income during minority, over and above the amount needed for maintenance and support, to be accumulated and added to the principal of each share. The income from the whole fund thus formed was to be paid to the child during life. The share, consisting of principal and accumulations, was to go, at .the death of the child, to his lawful issue, if any; and if not, to the issue of the two other children. Two shares were disposed of according to the terms of the will, leaving that of a minor son, Austin D. Moore, Jr., in the hands of the executor. Accumulations were made on this share during his minority. In 1874, Austin D. Moore, Jr., on arriving at his majority, brought an action against Joseph Hegeman, sole surviving executor and trustee, and others, to recover his said share, principal and accumulations, on the ground that the will was invalid and void in respect to the clause directing the trust and accumulations. In said action it was adjudged that the will was valid in whole and detail; that defendant was not the owner of said share, and that the same was not unlawfully withheld from him, but that it was the duty of the executor to hold the same upon the trust declared.</p> <p>The former action and judgment was interposed by the defendants as a bar to any recovery in this suit.</p> <p>The former action was one for the recovery of specific personal property, capable of identification, and of assignment and manual delivery. (Ferris v. Van Vechten, 73 N. Y. 119.) The present action is to enforce an equitable lien on such property. The causes of action are different and inconsistent. (Hudson v. Swan, 83 N. Y. 553 ; Graham v. Reed, 57 id. 681; Bradley v. Aldrich, 40 id. 504; Ross v. Mather, 51 id. 108; Barnes v. Quigley, 59 id. 265; McMichael v. Kilmer, 76 id. 36.) The claim to the ownership of the fund being abandoned, and the defendants not having been in any way misled to their hurt by the assertion of ownership rather than a lien, and the existence of the lien being always as well known to them as to the plaintiff, the right to enforce the lien is in no way affected. (Mexal v. Dearborn, 12 Gray, 366.) Since the present cause of action was not adjudged in the former action, and since no fact or matter of law upon which this action depends was there expressly determined adversely to the plaintiff, or impliedly .so determined by reason of its entering as a necessary element into something expressly determined, or into the denial of relief, therefore the former judgment furnishes no defense. ( Woodgate v. Fleet, 44 N. Y. 13 ; Campbell v. Consalus, 25 id. 613; Dunham v. Bower, 77 id. 76; Blair v. Bartlett, 75 id. 150; Collins v. Bennett, 46 id..490; Codes v. Preston, 41 id. 113; Sager v. Blain, 44 id. 445.) Privity with the other defendants in the former action cannot be predicated upon a mere succession by Edward to their situation to make a certain untenable claim. (1 Greenl. on Ev., § 189.) Since the plaintiff in the former action failed, and the property remained with the defendants, and since the defendants had no quarrel between themselves, nothing which was determined became res adjudicaba as between them. (Albany City Sav. Bk. v. Burdick, 87 N. Y. 40; Kennedy v. Apgar, 93 id. 548.) There were no issues whatever between them, in the former action, the plaintiff and the other defendants, except so far as they were in privity with Hegeman in the capacity in which he was there sued, which could in that action be tried and determined, and neither they, nor the defendant, Edward D. Moore, who claims privity with them, can claim any thing there adjudged as an estoppel against the plaintiff, unless Hegeman was present in that action as he is in this, in his representative capacity. (Paige v. Cagwin, 7 Hill, 372; Strong v. Wheeler, 5 Pick. 410.) Hegeman, as executor, cannot claim the benefit of an estoppel in his favor individually, and the other defendants as cestuis que trust to the executor are in the same situation. (Rathbone v. Hooney, 58 N. Y. 467.) The waiver of a former adjudication as an estoppel by a trustee is conclusive upon all parties interested or claiming to be interested as cestuis que trust in the property in his hands sought to be reached. (Wood on Lim. 386.) If the creditor brings an action for administration, the residuary legatee may set up the statute though the executor will not. (Partridge v. Mitchell, 3 Edw. Ch. 180; Fuller v. Redman, 26 Beav. 614.)</p> <p>The plaintiffs, as judgment creditors, are not asserting any title or estate in, or to, the property of the debtor, and are not in this action in privity with the judgment debtor, and do not proceed under or by virtue of any right or interest derived from him. (1 R. S. 729, § 57; Williams v. Thorn, 70 N. Y. 270.) The plaintiffs have the right as judgment creditors, under the Code, to compel the application of the property, which belongs to the debtor, to the satisfaction of the creditor’s demand. (Code Civ. Pro., § 1871.) The plaintiffs are not estopped by the judgment recovered in the action of Moore v. Hegeman. (Cromwell v. County of Sac, 94 U. S. 351; Kelly v. Town of Milan, 21 Fed. Rep. 863.) The claim of the plaintiffs can, it is respectfully submitted, be fully sustained upon the broad ground that there is not necessarily any privity whatever between a judgment creditor and his judgment debtor. ( Waters' Appeal, 35 Penn. St. 523 ; Kline's Appeal, 86 id. 363; Chandler's Appeal, 100 id. 263; Barter v. Pres. D. & H. Co. of Hartford, 8 Conn. 407; Bigelow on Estoppel, 280.) Even if it could be sustained, as a proposition of law, that a judgment creditor stands in privity with his debtor, so that the rule of estoppel by a former adjudication could be applied to him, yet equity does not, in this case, require the enforcement of the rule, which is only applied to prevent vexatious litigation. (O'Dougherty v. Remington, 81 N. Y. 478, 500.)</p> <p>A former judgment of the same court, or of a court of competent jurisdiction, directly upon the point in issue, is, as a plea in bar, or as evidence, conclusive between the same parties or others claiming under them, upon the same matter directly in question, in a subsequent action or proceeding. (Clemens v. Clemens, 37 N. Y. 74 ; Jordan v. Van Epps, 85 id. 436 ; Smith v. Smith, 79 id. 634; Bloomer v. Sturges, 58 id. 176; Stowell v. Chamberlain, 60 id. 276 ; Harris v. Harris, 36 Barb. 88; Embury v. Conner, 3 Comst. 522.) In discussing what might have been determined in the former action we may look beyond what appears on the face of the judgment to every allegation which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings. (Clemens v. Clemens, 37 N. Y. 73.) In discussing what was determined, we may look to the judgment as based on the findings (Sheldon v. Edwards 35 N. Y. 287), and the findings may be of fact or law, or both. (People v. Stephens, 51 How. 241 ; House v. Mullen, 22 Wall. 46; Bouchand v. Dias, 3 Denio, 244; Could v. Evansville R. R., 91 U. S. 533; Birkhead v. Brown, 5 Sandf. 141.) Though the judgment be of mixed law and fact, and the law be erroneous, the judgment is conclusive. (Collins v. Bennett, 46 N. Y. 495; Morgan v. Plumb, 9 Wend. 287.) The estoppel extends to every point which properly belonged to the subject of the allegation, and which the parties, exercising reasonable diligence, might have-brought forward at the time. (Gould v. Evansville R. R., 91 U. S. 533; Perry v. Dickerson, 85 N. Y. 347.) Even if the original action was to recover specific personal property, and this action is to recover moneys, the fact that the question of title had been passed upon would be fatal. (Stowell v. Chamberlain, 68 N. Y. 277.) The former action was between the same parties or their privies. (Candee v. Lord, 2 Comst. 275 ; Hersey v. Benedict, 15 Hun, 285 ; Curtis v. Leavitt, 15 N. Y. 51; Hall v. Stryker, 27 id. 603; Ludington’s Petition, 5 Abb. N. C. 323.) The allegations in the complaint should control the title. (Christy v. Libby, 35 How. Pr. 119 ; Beers v. Shannon, 73 N. Y. 297; Stilmwell v. Carpenter, 62 id. 640; 2 Abb. N. C. 238.) The court will look into the complaint and proceedings to determine the character of the parties thereto. (Murray v. Church, 1 Hun, 49; Bartlett v. Hatch, 17 Abb. Pr. 46; Forrest v. Mayor, etc., 13 id. 352; Butterfield v. Macomber, 22 How. Pr. 150; 3 Williams on Executors, 1937, note n.) Where the subject-matter of an action against an executor is part and parcel of the estate, and the remedy sought is wholly against the funds of the estate and relative to the estate, and in no sense involves the executor, except in his relation to the estate, the judgment is binding upon the estate beyond a doubt. (1 Greenl. on Ev., § 543.) When a particular will, contract or statute has been once before our Supreme Court and Court of Appeals in a general attack upon its validity, and these courts have, without qualification, declared such a will, contract or statute valid, such declaration should be regarded as a matter of settled law, concluding all further actions or proceedings between the parties or their privies. (Terry v. Wait, 56 N. Y. 94.) The defendant, Edward D. Moore, stands in privity with the parties to the former action, and is entitled to set up the former judgment as a bar to this action. ( Vail v. Vail, 7 Barb. 243.)</p>

(Reported below, 33 Hun, 338.) Said Andrew Hood died in 1864, leaving a will by which he appointed his wife, Maria Louisa, and his son Frederick, executrix and executor thereof. The substance of the provisions of the will, so far as material, is stated in the opinion. On the 28th of September, 1868, these executors presented their final accounts to the surrogate, who issued a citation addressed to the creditors, legatees and next of kin.

<p>The will of E. devised two lots of land to her executor, with power to sell in his discretion, in .trust, to collect the income or the proceeds in case of sale, and to pay therefrom to her mother annually a sum specified during life, and sums necessary for the support and -education of her son T. during his minority, the balance to be divided equally among her three other children. Upon the death of the mother of the testatrix and upon the arrival of age of J. she gave one of the lots, or the avails m case of sale, to J., “his heirs, executors, administrators or assigns.” The residue of her property she gave to her three other children, “ the survivor or survivors of them.” Shortly after J. becanae of age, the mother of the testatrix died. At that time but one of the three children named in the residuary clause was living. Upon final settlement of the accounts of the executor, held, that the words of survivorship referred to the death of the testatrix, and the limitation of the residuary estate took effect as a valid remainder at that time, and that, therefore, the representatives of the two deceased children were entitled to their respective shares of the residuary estate.</p>

<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 judg-v ment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.</p> <p>This action was brought to récover damages for alleged negligence, causing the death of plaintiff’s intestate.</p> <p>The material facts are stated in the opinion.</p> <p>Defendant, by answering to the merits and proceeding to the trial, waived the objection that the wrong was committed in another State. That objection should have been taken by demurrer or answer. (Code, §§ 488, 498, 499.)</p> <p>Actions for damages for causing death are creations of statute. (2 Wait’s Actions and Defenses, 471; 2 Thomp. on Meg. 1272, note.) Our statute, giving a right of action in such cases, has no extra-territorial effect, nor can our courts infer or presume that a similar statute exists in the State or country where the death was caused and occurred. The only presumption that can be indulged is that the common law exists there. ( Whitford v. R. R. Co., 23 N. Y. 465; Crowley v. R. R. Co., 30 Barb. 99; Beach v. Steamboat Co., id. 433; McDonald v. Mallory, 77 N. Y. 546; Leonard v. Navigation Co., 84 id. 48; Wilcox Silver Plate Co. v. Green, 9 Hun, 347; White v. Knapp, 47 Barb. 549; Holmes v. Broughton, 10 Wend. 75; Harris v. White, 81 N. Y. 532; Van Voorhis v. Brintnall, 86 id. 18 ; People v. Chase, 28 Hun, 310; Abell v. Douglas, 4 Denio, 305; Starr v. Peck, 1 Hill, 270.)</p>

(Reported below, 31 Hun, 578.) The nature of the action and the material facts are stated in the opinion. The maker of a demand note is liable thereon without demand; as to him it is a debt due presently, and an action lies against him thereon at once.

The nature of the action and the material facts are stated in the complaint. The making of a note payable to the order of a third person is per se no evidence of a debt or claim existing in the favor of the payee, nor is it evidence of a legal title, or even of an equitable interest therein, in favor of such payee.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 28, 1884, which directed judgment for defendant upon a case submitted under section 1279 of the Code of Civil Procedure.</p> <p>The facts stated in the case are substantially set forth in the opinion.</p> <p>The assessment in question took private property for public use without just compensation. (Bouv. Law Dic., tit. “Prop.1 Schouler, 4, 5 ; 2 Austin’s Juris. 831, 836; In re Jacobs, 31 Alb. Law Jour. 86 ; 1 Blackst. Com. 138; Walker v. O., C. & N. R. Co., 103 Mass. 10, 14; Wynehamer v. People, 13 N. Y. 378, 396; Cooley’s Const. Lim. 675; Taylor v. Porter, 4 Hill, 140; Morris Canal Co. v. Townsend, 24 Barb. 658; Mills on Eminent Domain, § 30; Williams v. N. Y. C. R. R. Co., 16 N. Y. 97; Carpenter v. Oswego R. R. Co., 24 id. 655; Wager v. Troy U. R. R. Co., 25 id. 526; Hatch v. Vermont C. R. R. Co., 25 Vt. 49; March v. P. & C. R. R. Co., 19 N. H. 372; Blake v. Rich, 34 id. 282; Craig v. R. C. & Brighton R. R. Co., 39 N. Y. 404; Bloomfield G. L. Co. v. Calkins, 62 id. 386; Fletcher v. Auburn db S. R. R. Co., 25 Wend. 462 ; Bloodgood v. M. & H. R. R. Co., 18 id. 9; Davis v. Mayor, etc., 35 N. Y. 306; Colby’s R. R. Law, 198-9; Mills on Eminent Domain, §§ 32, 33; Atlantic Tel. Co. v. C., etc., R. R. Co., 6 Biss. 158; Gardner v. Newburg, 2 Johns. Ch. 162; Bellinger v. R. R. Co., 23 N. Y. 42; Morgan v. King, 35 id. 454; Ex parte Jennings, 6 Cow. 518; Canal Comrs. v. People, 5 Wend. 423; People v. Pratt, 17 Johns. 195; McCord v. High, 24 Iowa, 342; Harris v. Thompson, 9 Barb. 350; Eaton v. B. C. & M. R. R., 51 N. H. 501; Grand Rapids B. Co. v. Jarvis, 30 Miss. 308; Armond v. Green Bay Co., 31 Wis. 316; Pettigrew v. Evansville, 25 id. 23; Pumpelly v. Green Bay Co., 13 Wall. 166; Hooker v. N. H. & N. Co., 14 Conn. 146 ; Sinnischon v. Johnson, 2 Harr. [N. J.] 129; Mayor v. Wilson, 5 Md. 138; Brown v. C. & S. R. R. Co., 12 N. Y. 486; 24 Barb. 362; 57 Me. 481; 32 N. J. L. 219; 16 Ind. 441; 30 Mich. 308; People v. Haines, 49 N. Y. 587; Olmstead v. Dennis, 77 id. 378; Matter of Cheeseborough, 78 id. 232 ; Matter of Rhinelander, 50 id. 107; Matter of Ryers et al., 72 id. 1; Matter of Kendall, 83 id. 612; Matter of Van Buren, 79 id. 384; Ellis v. Welch, 6 Mass. 246; Parks v. Boston, 15 Pick. 198 ; B. & O. R. R. v. Thompson, 10 Md. 77; Brown, v. Powell, 25 Penn. St. 229; Morris v. City of Peoria, 41 Ill. 503; Hendershott v. of Ottumwa, 46 Iowa, 658; Ashley v. Port Hudson, 35 Mich. 296; 2 Dill, on Mun. Corp., § 1045; Mills on Eminent Domain, §§ 30, 184, 185; Glover v. Powell, 10 N. J. Eq. 211; City of Louisville v. L. R. M. Co., 3 Bush [Ky.], 417; Henry v. Pittsburg & A. B. Co., 8 Watts & S. 85, 86; Hay v. Cohoes Co., 2 N. Y. 159; Keasey v. Louisville, 4 Dana, 154; Reynolds v. Shreveport, 13 La. 426; 58 Mo. 61; 65 Miss. 620; Springfield v. Mayo, 136 Mass. 10; Simonds v. Walker, 100 id. 112; Franklin v. Fiske, 13 Allen, 211.) The defendant is a trespasser. (Eaton v. R. R., 51 N. H. 534; Hickerson v. Mexico, 58 Mo. 61; Hunt v. Boonville, 65 id. 620; Mills on Eminent Domain, §§ 184, 185.) An assessment having as its basis a trespass is absolutely null and void. (People v. Haines, 49 N. Y. 587; Olmstead v. Dennis, 77 id. 378; Matter of Cheeseborough, 78 id. 223; Matter of Rhinelander, 68 id. 108; Matter of Kendall, 83 id. 612; Matter of Van Buren, 79 id. 384; 66 id; 400; 70 id. 452; McCaffrey v. Albany, 11 Hun, 613; Trustees v. R. R. Co., 3 Hill, 567; Hopkins v. Mason, 42 How. 115; Matter of Goldenberg, 17 Week. Dig. 61; Olmstead v. Denny, 77 N. Y. 378 ; McCaffrey v. Albany, 11 Hun, 613.) The assessment was also absolutely null and void, by reason of the unlawful change of grade. (Charter of Albany, title 4, § 17; Matter of Goldenberg, 17 Weekly Dig. 612; Matter of Deering, 85 N. Y. 1; Thompson v. Schermerhorn, 2 Seld. 92 ; Roosevelt v. Mayor, etc., 84 N. Y. 108 ; Matter of Belmont, 12 Hun, 558 ; People, ex rel. Ward, v. Asten, 49 How. 405 ; Peyser v. Mayor, etc., 70 N. Y. 503.) The approval of the common council was of no force or validity. (Dillon on Mun. Corp. [3d ed], § 96 ; In re Trustees, 57 How. 500 ; Birdsall v. Clark, 73 N. Y. 73; Foss v. Chicago, 56 Ill. 354; Jenks v. Same, id. 397; L. S. R. R. v. Same, id. 455 ; Hassen v. Rochester, 67 N. Y. 528; Meuser v. Risdon, 36 Cal. 239; Hydes v. Joyes, 4 Bush, 464.) The decision in the Clowery Case is res adjudícala and binding on the court in this case. (Chase v. Chase, 95 N. Y. 373 ; Brencher v. Port Chester, 31 Hun, 550 ; Delano v. Mayor, 19 Weekly Dig. 141; Matter of Stephens, 26 Hun, 23.) The payment made by William Moore, on April 24, 1877, does not prevent or preclude a recovery of the amount and interest from the city. (Charter of Albany, title 8, § 2 ; id., § 6, title 8, as amended by chap. 536, Laws of 1871; § 8, title 6; § 4, title 11, as amended by chap. 536, Laws of 1871; id., title 8, § 8 ; also title 8, § 13, as amended by chap. 563, Laws of 1874.) This is a case of a payment made under duress, consisting both of coercion by law and coercion in fact. Taxes unlawfully levied and collected, thus paid, can be recovered back. (Preston v. Boston, 12 Pick. 7; Arnold v. Cambridge, 106 Mass. 352; Hunnewell v. Charlestown, id. 350; Lond v. Same, 99 id. 20; Stephens v. Daniels, 27 Ohio, 527; Cooley on Taxation, 568; 2 Smith’s Lead. Cas. [6th ed.] 468; First Nat. Bk. v. Watkins, 21 Mich. 83; Nikodemus v. East Saginaw, 25 id. 456 ; Kansas P. R. R. Co. v. Commissioners, 16 Kans. 587; Green v. School District, 57 Penn. St. 433; Ham v. Chester, 15 Vt. 460; Babcock v. Granville, 44 id. 325 ; Falkner v. Hunt, 16 Cal. 167 ; Chandler v. Sanger, 114 Mass. 364; Westlake v. St. Louis, 77 Mo. 47; 29 Alb. Law Jour. 57; Railroad v. Commissioners, 8 Otto, 541; Atwell v. Zuleff, 26 Mich. 118; Cooley on Taxation, 565; Peyser v. Mayor, etc., 70 N. Y. 501; Bouvier’s Law Dict., title Duress; 1 Cowen’s Treat., § 76; Foshay v. Ferguson, 5 Hill, 154; Eadie v. Slimmons, 26 N. Y. 9 ; Preston v. Boston, 12 Pick. 7; Ginn v. Weissenberg, 57 Penn. St. 433; Babcock v. Granville, 44 Vt. 325; 4 Am. Dec. 172-3, note; Strasburg Case, 87 N. Y. 445,456 ; Dillon on Mun. Corp., § 939; Delano v. Mayor, etc., 19 Weekly Dig. 141; Cook v. Andrews, 40 N. Y. 547; Marsh v. Brooklyn, 59 id. 208; Washbwn v. Burnham, 63 id. 132; Guest v. Brooklyn, 69 id. 506; Dederer v. Voorhees, 81 id. 153; Banks v. Mayor, 43 id. 188 ; Dolan v. Mayor, 62 id. 472; Horn v. New Lots, 83 id. 100; Newman v. Supervisor,45 id. 676; Home L. Ins. Co. v. Sherman,46 id. 370; Pursell v. Mayor, 85 id. 330; Clark v. Pinney, 6 Cow. 297; Breueher v. Port Chester, 31 Hun, 550.) The judgment in the Clowery Case entitles us to a verdict in any event, even without a vacating, of the original assessment. (Clark v. R. R. Co., 94 N. Y. 220; Chase v. Chase, 95 id. 373; Matter of Deering, 85 id. 1; Delano v. Mayor, etc., 19 Week: Dig. 141; 26 Hun, 427; Breucher v. Village of Port Chester, 31 id. 550; 82 N. Y. 351; Code, § 1207; Moak’s Van Santvoord’s Pleadings, 190, 273, 830; Hale v. Bank, 49 N. Y. 626; Stevens v. Mayor, etc., 84 id. 296; Murtha v. Curley, 90 id. 372; Cooley on Taxation, 535, 568; Hatch v. Buffalo, 38 N. Y. 276; Charlestown v. Commissioners, 109 Mass. 270; Floyd v. Gilbreath, 27 Ark. 675; Knapp v. Brooklyn, 28 Hun, 500; Brewster v. Syracuse, 19 N. Y. 116; 49 id. 592; 77 id. 385; In re Lange, 85 id. 307.) Chapter 459 of the Laws of 1881, passed June 4, 1881, and entitled “An act to confirm and levy certain assessments for street improvements- in the city of Albany, and to regulate the collection thereof,” is an act validating and confirming an illegal assessment. (Mayor v. Horn, 26 Marl. 194 ; Butler v. Supervisors, 26 Mich. 22; Denny v. Mattoon, 2 Allen, 377; McDaniel v. Correll, 26 Ill. 227; Cooley on Taxation, 233; Foster v. Foster, 129 Mass. 561; Richards v. Rote, 68 Penn. St. 248; Menges v. Dentler, 33 id. 495; Clark v. R. R. Co., 94 N. Y. 217; Chase v. Chase, 95 id. 373; Delano v. Mayor, etc., 19 Week. Dig. 141; 87 N. Y. 452 ; Breucher v. Port Chester, 31 Hun, 550.) . The legislature cannot ratify, confirm or validate an unconstitutional assessment, nor an assessment void for reasons based upon defenses other than informalities or irregularities. (People, ex rel. Hays, v. Brooklyn, 71 N. Y. 495 ; Tifft v. Buffalo, 82 id. 204; People, ex rel. Kilmer, v. McDonald, 69 id. 363; People v. Mitchell, 35 id. 551; Miller v. Boyes, 6 Iowa, 330; Marsh v. Chestnut, 14 Ill. 223; 15 id. 218; Conway v. Cable, 37 id. 82; People v. Williams, 3 T. & C. 338; Mays v. Hollbridge, 23 . Wis. 98; Dean v. Carlton, id. 590; Tallman v. City of Janesville, 17 id. 71; Cross v. City of Milwaukie, 19 id. 509 ; Butler v. Supervisors, 26 Mich. 26 ; 3 Wall. [U. S.] 327; Hart v. Henderson, 17 Mich. 222; Forster v. Forster, 129 Mass, 559 ; Underwood v. Lilly, 10 S. & R. 101; Cooley’s Const. Lim. 381, 382; Cooley on Taxation, 229,228, 227; Richard v. Rote, 58 Penn. St. 248 ; Menges v. Dentler, 33 id. 495; Stronk v. Brown, 61 id. 321; Dederer v. Voorhees, 81 N. Y. 159.) The act in question is unconstitutional and void, .inasmuch as it deprives plaintiffs of property (that is of a vested right of action) without just compensation. (Cooley’s Const. Lim. 369, 370 ; Tifft v. Buffalo, 82 N. Y. 210; Breucher v. Port Chester, 31 Hun, 550; Delano v. Mayor, etc., 19 Week. Dig. 141; Chase v. Knowles, 95 N. Y. 373; Van Antwerp's Case, 56 id. 266; Cooley’s Const. Lim. 361, 362; Conway v. Cable, 37 Ill. 82; People v. Supervisors, 70 N. Y. 229; Matter of Townsend, 39 id. 171; Wanemeyer v. People, 13 id. 390; Shaffer v. Euer, 54 Penn. St. 304; Shank v. Brown, 61 id. 321; Underwood v. Lilly, 10 S. & R. 101; Rockwell v. Neary, 35 N. Y. 304; Stuart v. Palmer, 74 id. 183; Tifft v. Buffalo, 82 id. 204; N. Y. & O. M. R. R. Co. v. Van Horn, 57 id. 477.) The act is void, being in violation of section 16, article 3 of the Constitution, which reads: “ Ho 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.” (People v. Hills, 35 N. Y. 451; Laws of 1881, chap. 459, § 1; Hurlburt v. Banks, 1 Abb. N. C. 163.) As an exercise of taxation the said act is void. (Wynehamer v. People, 13 N. Y. 390; Stuart v. Palmer, 74 id. 183; Dederer v. Voorhees, 81 id. 159; Cooley on Taxation, 227,233 ; Cooley’s Const. Lim. 369, 379, note 1; Butler v. Supervisors, etc., 26 Mich. 22; People v. Brooklyn, 71 N. Y. 495; Howell v. City of Buffalo, 37 id. 267 ; Brewster v. Syracuse, 19 id. 118.) As an exercise of tlie taxing power the statute is void, as being in violation of section 16, article 3 of the Constitution. (People v. Mayor, etc., 4 N. Y. 419 ; Hassen v. Rochester, 67 id. 528; Roosevelt v. Mayor, etc., 84 id. 113; 8 Mich. 298.) As an act levying a tax, it is unconstitutional and void, because the tax is levied without reference to benefits, and is unequal, unjust and not apportioned. (Const., § 6, art. 1; Stuart v. Palmer, 74 N. Y. 183; Albany City Nat. Bk. v. Maher, 9 Fed. Rep. 884; Matter of Roberts, 81 N. Y. 67; People v. Comrs., 23 id. 196; People v. Mayor, etc., 4 id. 419; Col. L. Ins. Co. v. Supervisors, 4 Abb. 87; Comer v. Folsom, 13 Wis. 219; Smith v. Cleveland, 17 id. 556; Lexington v. McQuillan, 9 Dana, 516 ; Howell v. Bristol, 8 Bush, 498 ; R. R. Tax Cases, 13 Fed. Rep. 722; Orleans v. Cochran, 13 La. Ann. 373; Trustees v. Township Comrs., 36 N. J. 67; Cummings v. Nat. Bk., 101 U. S. 153; Nat. Bk. v. Kimball, 103 id. 734; People v. Mayor, etc., 4 N. Y. 419; Laws 1881, chap. 459, § 1.) As , an act levying a new tax, or as one confirming a void assessment, it is unconstitutional, because it does not give the people taxed notice, or an opportunity to be heard. (Overing v. Foote, 65 N. Y. 267; 17 id. 383 ; 49 id. 243; 40 Barb. 644; Stuart v. Palmer, 74 N. Y. 189 ; De Peyster Case, 80 id. 572; Albany City Nat. Bk. v. Maher, 9 Fed. Rep. 884; Const., § 6, art. 1; Gatch v. Des Mornes, 3 Am. & Eng. Cas. 622, note, 630; 65 N. Y. 277 ; Cooley on Taxation, 229; Matter of Lowden, 89 N. Y. 554; Lang v. Kiendel, 27 Hun, 26; People v. Supervisors, 70 N. Y. 234; Matter of Zborowski, 68 id. 97; Cooley’s Const. Lim. 404.) As an act imposing a tax, it is void as being in conflict with section 20, article 3 of the Constitution. It does not distinctly state * * * the object to which it (the tax) is to be applied. (Laws of 1881, chap. 459, § 1; Sun Ins. Co. v. City of N. Y., 5 Sandf. 10; People v. Supervisors, 17 N. Y. 235 ; 52 id. 556 ; Bank v. Supervisors, 27 Barb. 583 ; People v. Ins. Co., 92 N. Y. 328.) The act is unconstitutional because it does not state the tax, and it refers to another law, to fix such tax. (Const., art. 3, § 20; People v. Supervisors, 52 N. Y. 556; Hurlburt v. Banks, 1 Abb. N. C. 157; Hanlon v. Supervisors, 57 Barb. 383.) For its trespasses and wrongful acts, the city is liable the same as an individual. (Ashley v. Port Hudson, 35 Mich. 296; 2 Dillon on Mun. Corp., §§ 1045, 1048; In re Jacobs, 31 Alb. Law Jour. 86; Brown v. Maryland, 12 Wheat. 419; Dillon’s Mun. Corp. [3d ed.], § 992, note 1; Cooley’s Const. Lim. 542, note; Story v. N. Y. El. R. R. Co., 90 N. Y. 122; 11 Abb. N. C. 288; Arnold v. H. R. R. Co., 55 N. Y. 661; Doyle v. Lord, 64 id. 432; In re Jacobs, 31 Alb. Law Jour. 85.) Moore was not a party or a privy to the contract of grading, cannot be estopped by not doing an act which the law would not allow him to do, or for not presenting a protest to a body that was not authorized to receive it. (Tone v. Columbus, 3 Am. & Eng. Corp. Cases, 661; Viele v. Judson, 82 N. Y. 32; 22 Mich. 104; Davenport v. Davenport, 43 Iowa, 301.) The assessment is void as an entirety for want of a legal basis, and it may be resisted and its invalidity asserted at all times. (Chase v. Chase, 95 N. Y. 381.) A void assessment cannot be divided at common law. (Matter of Stephens, 26 Hun, 22; Matter of Willis, 30 id. 13 ; Matter of Mutual Life Ins. Co., 89 N. Y. 535 ; Matter of Merriam, 84 id. 596 ; Matter of Mead, 74 id. 216.)</p> <p>The city had the right to grade the Street, even if by so doing adjacent property was cut off from it, or access rendered difficult from it. (Dillon’s Mun. Corp. [3d ed.], § 900.) The reason an occupation of lands has been held to be a taking has been, where thereby the usefulness of the land has been effectually destroyed or impaired. (Pumpelly v. Green Bay Co., 13 Wall. 160.) When land is acquired for the purposes of a street, changes as to grade which might be required must be presumed to have been contemtemplated when the land was taken and devoted to the purposes of a street as incident to the enjoyment of the easement which was then acquired. (Henderson v. Minneapolis, 31 Alb. Law Jour. 119.) A conveyance for a special purpose carries with it all rights necessary to use it for the purposes for which it was conveyed. (Adams v. Conover, 87 N. Y. 422.) There is no damage from change of grade-line shown to plaintiff’s testator, excepting that the amount of his assessment was thereby increased some $80, which is not such a substantial damage as to afford a ground to vacate the entire assessment, or, as in this action, to recover back the whole amount of the assessment paid by him. (In re Petition of Mut. L. Ins. Co., 89 N. Y. 530.) The fixing of the grade-line being wholly within the power of the common council, the due approval of the assessment and apportionment by the common council, with the work and grade-line as actually done, cured this defect and ratified the graded line, as if originally thus passed. (Edwards v. City of Watertown, 61 How. Pr. 463.) As plaintiffs’ testator saw the work in progress, and made no objection to the manner of the performance of the work, they are estopped by his acts. (Matter of McGowan, 18 Hun, 434; In re Lewis v. Utica, 67 Barb. 456.) A party may waive a statutory, and even constitutional, provision in his favor. (In re Cooper, 93 N. Y. 507.) Plaintiffs are also estopped by their testator’s payment, which was voluntary. (Sexton v. Pepper, 28 Hun, 31; Jacob v. Morange, 47 N. Y. 57.) As the assessment was valid and re-assessed by chapter 459 of the Laws of 1881, plaintiffs could not recover. (In re Van Antwerp, 56 N. Y. 261; In re Woolsey, 95 id. 135; People v. Flagg, 46 id. 401; Note on State Power of Taxation, 16 Fed. Rep. 201; People v. Mayor, 4 N. Y. 419 ; Town of Guilford v. Supervisors, 13 id. 143; Tift v. Buffalo, 82 id. 204; People v. McDonald, 69 id. 362; Brevoort v. Brooklyn, 89 id. 128; In re Clementi v. Jackson, 92 id. 591; Stuart v. Palmer, 74 id. 183; People v. Nearing, 27 id. 306.) The owners of the land upon which the embankment and culverts were made, having acquiesced in the same, the appellants cannot have their assessment vacated upon the ground that 'there was no authority to use the lands for these purposes. (In re Woolsey, 95 N. Y. 135 ; Ferguson v. Flandrau, 5 Bush, 231; Matter of Ingraham, 64 N. Y. 310 ; Matter of McGowan, 18 Hun, 434.) If the court finds that some illegal items were added on the assessment it may, in an action like this, award judgment for that amount, and dismiss the complaint as to the rest. (Strasburg v. Mayor, etc., 87 N. Y. 452; Delano v. Mayor, etc., 32 Hun, 144.)</p>

Appeal by defendant William Tiffany, from a judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 19, 18b3, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.

(Beported below, 33 Hun, 223.) This action was brought to recover $2,000 and interest, alleged to have been loaned by Bobert F. Childs, plaintiff’s testator, to Bobert Scott, defendant’s testator. The 'answer was a general denial of the allegations of the complaint, and also set up various counter-claims substantially stated in the complaint.

(Reported below, 31 Hun, 476.)'/ The nature of the action and the material facts are stated in the opinion.

Tilden, the petitioner. The material facts are stated in the opinion. FT either the surrogate nor the Supreme Court had power upon a proceeding of this nature, on a mere motion, to be heard on affidavits, to set aside the decrees in question, because the time allowed for that purpose by the statute had expired before the application was made.

The application for the order of dismissal was a motion. (Code of Civil Pro., § 768.) There being no special provision of law or of the rules of practice in respect to notice of a motion of this character, and no order to show cause having been granted, the appellants were entitled to the notice prescribed in such cases by statute. (Code of Civ. Pro., § 780.) The Code requires such notice, and one General Term has no power to dispense with such requirement.

Appeal by the petitioner above named from a portion of an order of the General Term of the Supreme Court, in the fifth judicial department, made October 31, 1884, which reversed an order of Special Term confirming an award of commissioners herein, set aside said award, and directed a new appraisal by the same commissioners, but which refused to appoint new commissioners on the ground of want of power.

(Reported below, 30 Hun, 424.) The principal objection to the proceedings was that jurors were not drawn as required by the act chap. 431, Laws of 1875, amending the provisions of the Revised Statutes, known as the General Highway Act. The particular provisions of the charter should be read and construed in the light of the whole instrument and of all preceding charters.

This was a motion to dismiss an appeal because of a failure to give an undertaking as required by the Code of Civil Procedure (§ 1334), and because of a failure to notice the appeal for argument and put case on calendar. An undertaking was given, signed by the appellant and the Fidelity and Casualty Company, with no other surety.

The question submitted was as to whether defendant should be compelled to perform a contract for the purchase by him, from plaintiffs, as executors of the will of James Benedict, deceased, of certain real estate, of which their testator died, seized. The facts submitted so far as material appear in the opinion. The will created a trust estate in the executors, and not a power in trust.

<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 November 5, 1884, which affirmed a judgment in favor of defendant Kelly, entered upon an order dismissing the complaint on trial.</p> <p>This action was a bond given by William W. Burnham upon his appointment as book-keeper in the department of docks in the city of New York.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The performance of the duty of receiving money by the book-keeper, by the direction or permission of the dock commissioners, was no extension of the risk undertaken by the sureties. (Minor v. Mechanics’ Bk., 1 Peters, 46.) The position to which Burnham was appointed was a public office. (Rowland v. Mayor, etc., 83 N. Y. 372.) The imposition of new duties upon such an officer does not discharge the sureties upon his official bond. (People v. Vilas, 36 N. Y. 459; White v. Fox, 9 Shepley, 341; People v. McHatton, 2 Gilmore, 216; Kindle v. State, 7 Black, 586; Supervisors of Monroe v. Clark, 92 N. Y. 395; Ganson v. United States, 2 U. S. 584; Commonwealth v. Holmes, 25 Gratt. 771; Hatch v. Attleboro, 97 Mass. 533; U. S. v. Kilpatrick, 9 Wheat. 720; White v. Fox, 9 Shepley, 341; Colter v. Morgan, 12 B. Monr. 278; Rochester City Bk. v. Elwood, 21 N. Y. 88; German Am. Bk. v. Auth, 87 Penn. St. 416.)</p> <p>The imposition of the new duties upon Burnham, or the acquiescence of the board in his voluntary performance of them as a regular and continuous part of his own duties, was tantamount to appointing him to the office of treasurer, and a new contract was made between the obligees and the principal, to which the sureties are not parties. (Supervisors v. Pennock, 60 N. Y. 426; Miller v. Stewart, 9 Wheat. 680 ; Nat. Bk. Asso. v. Conkling, 90 N. Y. 116; Ward v. Stahl, 81 id. 406; Ludlow v. Simonds, 2 Cai. Cas. 1, 29, 30, 35; U. S. v. Hillegas, 3 Wash. C. C. 76; De Colyar on Guar. 268; Bonar v. McDonald, 3 H. L. Cas. 226 ; People v. Vilas, 36 N. Y. 459; State v. Armstrong, 40 Mo. 209.) The clause in by-law seven, “ the bookkeeper shall perform such other duties as may be prescribed by the board from time to time,” does not relieve the board from the effect of their acquiescence in Burnham’s performance of the duties of treasurer, or render the sureties liable. (People v. Pennock, 60 N. Y. 426; Minor v. Mechamics’ Bk., 1 Pet. 46; Broom’s Legal Maxims, 646; Nat. Bk. Ass'n v. Conkling, 90 N. Y. 116.) Burnham was not a public officer in the sense in which that term is used in People v. Vilas (36 N. Y. 459) and Supervisors v. Clark (92 id. 390). Additional duties imposed on a public officer, even - by the legislature, must not change the general nature or functions of the office if the surety is not to be discharged. (36 N. Y. 463, 467 ; 92 id. 394, 395.)</p>

Appeal by defendant Seth W. Scofield from an order of the General Term of the Superior Court in the city of New York, made November 10, 1881, which affirmed an order of the Special Term herein. This was an action to foreclose a mortgage on real estate in the city of New York, of which said defendant Scofield was the owner.

<p>These were motions, the nature of which, and the material facts, are stated in the opinion.</p>

<p>M., plaintiff’s intestate, left with defendant, for safe-keeping, two United States treasury notes, taking a receipt therefor, which stated that they were to be delivered on surrender of the receipt. On August 15,1866, the day the notes matured, defendant, at the request of plaintiffs husband, sold the notes and paid the proceeds ($1,050) to him. M. was married prior to 1848. Plaintiff presented the receipt and demanded the bonds in 1879, and upon refusal to deliver, brought this action for a breach of the contract expressed in the receipt. Held, that as M. had possession of the notes, and defendant dealt with her as owner, in the absence of evidence that they belonged to her husband or came to M. in such a manner as to vest the title in him, it was to be inferred they were her separate property, and hence it could not be held that her husband had the right to control them, nor could it be inferred that the sale and payment was with her knowledge or consent; that as M. died leaving children, her claim against defendant did not as at common law pass to her husband, but under the act of 1867 (§ 11, chap. 783, Laws of 1867), he was entitled only to a distributive share thereof; and that it was no defense to the action that the husband, if living, would be entitled to a portion of the money if a recovery was had.</p> <p>Also held, that the action was not barred by the statute of limitations as the cause of action did not accrue until demand.</p> <p>It seems that had the action been for the conversion of the bonds, it would have been barred.</p> <p>The distinction between the two classes of actions pointed out.</p> <p>M.’s husband about the time he received the proceeds of the notes, purchased certain real estate for $1,300, on which he erected a dwelling soon after. He and his wife lived in the house until January, 1869, when she died, he continuing to live there with their children until April, 1874, when he died intestate, seized of said real estate, which passed to their children; its value then exceeded the value of the notes. Held, that conceding the proceeds of the notes were invested in the land so purchased, although the heirs and next of kin of M. were benefited by the investment, this furnished no defense to the action, as they took the land by inheritance from their father; and plaintiff was entitled to enforce the claim against defendant.</p>

This action was brought to recover damages for injuries alleged to have been sustained by defendant’s negligent omission to keep one of its sidewalks in repair and in safe condition. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 19, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 30 Hun, 628.)</p> <p>This action was brought by the plaintiff as receiver of one McRae, appointed in-proceedings supplementary to execution, to recover, under the provisions of section 5198 of the Revised Statutes of the United States, twice the amount of excessive interest alleged to have been taken and received by the defendant from McRae, prior to November 1, 1876, on loans and discounts made by the bank to and for McRae, the amount of which excessive interest, as found by the referee, was $946.75. The defendant, among other things, set up in his answer as a defense, an alleged agreement between McRae, and the bank, made on or about Hovember 1, 1876. This agreement was found by the referee as follows: “ that on or about the first day of Hovember, 1876, an oral agreement was made between McRae and the' president and vice-president of the defendant, for and on behalf of the bank, whereby McRae agreed to settle and discharge all claims and causes of action in his favor against the bank, for or on account of McRae, having paid more than seven per cent, upon loans and discounts, and that all such matters be applied in payment of that part of his indebtedness to the bank, not collected by the bank from any other source, and that he would not sue or allow any other suit to be brought against the bank for or on account of such illegal interest paid to the bank, and in consideration thereof the said officers of the bank, for and in behalf of the bank, agreed that the bank would satisfy so much of the indebtedness of McRae to the bank as remained after applying all other collections available to the bank, or would consent as a creditor to his discharge in bankruptcy, as McRae might request.” When this agreement was made McRae was indebted to the bank for loans and discounts to a large amount, and on the 26th day of June, 1879, after applying all collections made by the bank, there was then due from McRae on the indebtedness existing Hovember 1, 1876, without taking into account the excessive interest paid, the sum of $7,847.78, no part of which has since been paid. McRae became insolvent in 1876.</p> <p>The referee overruled the defense stated and directed judgment for the plaintiff for $1,893.50, double the amount of the unlawful interest.</p> <p>Other facts are stated in the opinion.</p> <p>The proofs did not specify, give the contents of, or identify with sufficient certainty any note or draft or paper (except the seven proved by defendant, which had never been paid), to entitle plaintiff to a recovery. (Smith v. Exchange B’k., 26 Ohio, 141; Thompson’s Nat’l Bk. Cases, 836.) The balance of $7,847.43, due defendant, was and should have been allowed as a legal counter-claim and defense against the said $946.75 excessive interest so found to have been charged, reserved and retained, because the action, though nominally for penalties, was in law founded upon an implied contract. (R. S. U. S. [2d ed.], 1878, §§ 5197, 5198 ; People v. Bennett, 5 Abb. 384; 6 id. 343.) The said balance of $7,847.43, which defendant insists is a counter-claim and defense, arose out of the same transaction set forth in the complaint. (Seligman v. Dudley, 14 Hun, 186; Moody v. Moody, 16 id. 189; Carpenter v. Manhattan L. F. Ins. Co., 22 id. 49 ; Thompson v. Kessell, 30 N. Y. 389 ; Isham v. Davidson, 51 id. 240; Shipman v. Lansing, 25 Hun, 290; Smith v. Felton, 43 N. Y. 419; Smith v. Fox, 48 id. 674; ,O'Brien v. Gamiss, 25 Hun, 446; Code of Civil Pro., § 507; Lucas v. Gov. Nat. Bk. of Penn., 78 Penn. 228; Thompson’s Nat. Bk. Cases, 872; 21 Am. Rep. 17; Nat. Bk. v. Lewis, 75 N. Y. 516 ; Nat. Bk. v. Davis, Thomp. Nat. Bk. Cases, 350.) The evident intention of the parties making this contract as to the application of the extra interest must control. ( Getman v. Second Nat. Bk., 12 Weekly Dig. 557; 14 id. 352; Farmers’, etc., Nat. Bk. v. Dearing, 91 U. S. [1 Otto] 29.) The promises were mutual and one was a consideration for the other. (1 Chitty on Cont. [11th ed.] 72, 73, 74; Briggs v. Tillotson, 8 Johns. 304 ; Ormes v. Dauchy, 82 N. Y. 443 ; Wellington v. Kelley, 84 id. 543 ; Coleman v. Eyre, 45 id. 39 ; Lohman v. N. Y. & E. R. R. Co., 2 Sandf. 39 ; Litchfield v. Johnson, 1 Sweeney, 459 ; Barton v. McLean, 5 Hill, 256; Palmer v. Worth, 35 Barb. 282 ; Pepper v. Haight, 20 id. 429.) Mo recovery can be had on the ground of excessive interest without clear and positive proof that payment was made, nor without a certain and definite finding in the report that such payment had been made." (Smith v. Exchange Bk., 26 Ohio, 141; Farmers' Nat. Bk. v. Dearing, 91 U. S. [1 Otto] 29; Bd. of Education v. Fonda, 77 N. Y. 35; Feldman v. Beir, 78 id. 293.) The allowance as for the payment of extra interest upon said unpaid renewed notes, as if the same had been proved paid, was illegal, (Jagger Iron Co. v. Walker, 76 N. Y. 521; Parrott v. Colby, 6 Hun, 55; Hill v. Beebe, 13 N. Y. 556; 71 id. 597; Bank of Cadiz v. Slemmons, 34 Ohio St. 142 ; Oberholt v. Nat. Bk. 82 Penn. St. 490; Nat. Bk. v. Lewis, 75 N. Y. 516.) Nothing can be presumed, but the plaintiff in an action for penalties is held to strict proof to entitle him to a recovery. (Tiffany v. Nat. Bk. of Missouri, 18 Wall. [U. S.] 409; Farmers’ Nat. Bk. v. Dearing, 91 U. S. [1 Otto] 29.) The court will never apply an unappropriated payment, where there are both legal, just and equitable claims due upon which it could, and in justice and equity should be applied upon an unjust, illegal and inequitable claim. (Heufstater v. Hayes, 64 Barb. 573; Bartholomew v. Yaw, 9 Paige, 165 ; Jones v. Benedict, 83 N. Y. 79; 2 Greenl. on Ev. [13th ed.], § 533, note 3488; Roham v. Hanson, 11 Cush. [Mass.] 44; Bancroft v. Dumas, 12 Vt. 457; Seymour v. Marvin, 11 Barb. 90; Bachman v. Wright, 1 Williams [Vt.], 187; Caldwell v. Wentworth, 14 N. H. 437; Wright v. Laing, 3 Barn. & Cres. 165 ; 10 Eng. C. L. R. 83; McDonald v. B. C. Co., 5 Mason, 11; Gass v. Stinson, 3 Sumner, 99; Ayer v. Hawkins, 19 Vt. 26.) When payments are made upon usurious security,' they will first be applied to the payment of the principal and interest. (Bartholomew v. Yaw, 9 Paige, 165 ; Parchman v. McKinney, 12 Sm. & M. 631; Stanley v. Wistrop, 16 Tex. 200; Gill v. Rice, 13 Wisc. 549; Smith v. Croper, 9 Iowa, 376; Solomon v. Dischler, 4 Minn. 278; Burrows v. Cook, 17 Iowa, 436.) The right of the creditor to make application of payment is confined to legal.valid claims, such as can be enforced. (Hall v. Clement, 41 N. H. 166; Green v. Tyler, 3 Wright, 361; Kidder v. Norris, 18 N. H. 532.) The mere making of the agreement effected its execution in preesenti. (Davis v. Spencer, 24 N. Y. 386; Hartley v. Latham, 2 Abb. Ct. of App. Dec. 333 ; Butts v. Perkins, 41 Barb. 509 ; 48 N. Y. 675; Van Etten v. Trodden, 67 Barb. 342; Pratt v. Foote, 9 N. Y. 463 ; Fuller v. Conde, 47 id. 89 ; Therasson v. Peterson, 4 Abb. Ct. App. Dec. 396; Bundlett v. Small, 25 Me. 29; Codman v. Armstrong, 28 id. 90; Miller v. Montgomery, 31 Ill. 350; Tomlinson- Co. v. Kinsella, 21 Conn. 268; Chancellor v. Scott, 11 Harris [Penn.], 68.) The only remedy left McEae on account of the payment of said extra interest sought to be recovered in this action was, and must be, the legal enforcement of the conditions of said agreement as against the Second National Bank. (2 Chitty on Cont. [11th ed.] 1146.) As the debt or obligation to repay McEae twice the amount by him to defendant paid as extra interest was not evidenced in writing under seal, it could be, as it was, released by said parol engagement. (Foster v. Purdy, 5 Metc. [Mass.] 442; Warren v. Walker, 23 Me. 458 ; Chandler v. Herrick, 19 Johns. 129 ; Perkins v. Gilman, 8 Pick. 229; Winans v. Huston, 6 Wend. 475 ; Kirby v. Taylor, 6 Johns. Ch. 242; Story on Cont. [5th ed.], § 1391, note 5 ; 2 Pars, on Cont. [6th ed.], § 6; 1 Add. on Cont. [Am. ed. by Morgan), § 370.)</p> <p>The rule of law, in the absence of an agreement or application otherwise, is that the payment must first be applied to extinguish the interest and the balance to apply on the principal. (Nat. Bk. v. Lewis, 81 N. Y. 20.) The law also applies payments on claims in the order of their maturity, where no other agreement or application is made. (Dows v. Morewood, 10 Barb. 183; Wheeler v. Cropsey, 5 How. Pr„ 288; Hunter v. Osterhout, 11 Barb. 33; Allen v. Culver, 3 Denio, 284; Webb v. Dickenson, 11 Wend. 62 ; 2 Pars, on Cont. [5th ed.] 629-635.) The balance of the claim of defendant against McEae cannot be set off and allowed as a counter-claim against the claims of the plaintiff for the penalties. (Auburn v. Lewis, 81 N. Y. 15; 8 Otto [U. S.], 555.)</p>

(Reported below, 31 Hun, 458.) */ The nature of the action and the material facts are stated in the opinion. The defendants Bolton and Scriber, after the death of Lucinda Comstock, on their appointment, became the successors of the executrix in the trust. This trust did not devolve upon the administrator of Lucinda Comstock, but upon her successor in the trust. (Luers v. Brunges, 56 How. Pr. 282; Walton v. Walton, 4 Abb. Ct. App. Dec. 512; Moses v.. Murgatroyd, 1 Johns.

Daniel Dorsey, being possessed of real and personal estate, made his will on the 21st of January, 1823, containing among-others, not now material, the following clauses: “ 2d. I give and devise unto my dear wife Eleanor Dorsey, all my estate, real and personal, to be used and enjoyed by h'er at her own discretion during her natural life.” * * * * “3d. After the decease of my wife Eleanor Dorsey, what-’ ever may remain of my property of every value and description is to be…

This action was brought to recover damages for alleged negligence, causing the death of plaintiff’s intestate. The complaint was dismissed on the trial. The General Term granted a new trial. Its order was affirmed on appeal to this court, and judgment absolute directed for plaintiff. The damages were assessed by a jury. The facts so far as material are stated in the opinion. The term “ pecuniary injury ” used in the statute (Laws of 1847, chap. 450; Code of Civ.

Mason and others, as trustees, under the will of John Post, deceased. Said testator died in September, 1874, possessed of a large personal estate, and leaving a will, the provisions whereof, so far as material, are as follows: “ First. It is my will, and I direct that all of my just debts and expenses of executing this will be first paid out of my estate.” “ Third.

Appeal by the defendant, Charles H. Rngg, from a judgment of the General Term of the Supreme court in the second department, December 9, 1884, affirming a judgment of the court of Oyer and Terminer of Queens county, lion. Chas. F. Brown presiding, April 17, 1884, convicting the defendant of murder in the first degree. Defendant was indicted March 7, 1884, for the murder of Ann E. Maybee, alleged to have been committed November 17, 1883.

<p>As against a bona fide holder of bonds issued by a railroad corporation, it may not be shown that restrictions imposed by its charter upon the power of the corporation to negotiate its bonds were violated.</p> <p>As such corporations have general power to issue bonds, persons dealing therein, in the absence of notice, have the right to assume that all restrictions upon this power have been complied with.</p> <p>Where a railroad company, incorporated in and under the laws of another State, enters into a contract in this State, which, by its terms, is to be performed here, and is legal under the laws of the State, prohibitions in its charter, which would render the contract illegal in the State where the corporation was organized, do not render it illegal here ; their only effect here is as restrictions upon the corporate power.</p>

affirmed an order of the county judge of Orange county, in proceedings supplementary to execution, directing the defendant to pay over to the sheriff of said county the sum of $59. (Reported below, 33 Hun, 329.) It appeared by the papers that defendant resided at Hawley, Pennsylvania, and was in the employ of a railroad company. Several days after the proceedings were instituted he received a check for his wages for the preceding month.

| & | [\ ^ ■ The nature of the action and the material facts are stated in the opinion. If the hook was a reasonably safe appliance, it was not negligence in defendants not to adopt some other appliance which may have been more safe. (Whart. on Neg., § 213; Stringham v. Stewart, 27 Hun, 562; Charles v. Taylor, 30 Eng.

(Reported below, 32 Hun, 184.) ^ This action was brought to obtain a judicial construction of the will of Esther L. Tiers, deceased. The clauses of the will in question were as follows: “ Thwd.

The nature of the appeal is set .forth in the opinion. Nothing is a judgment, in a strict technical legal sense of the term, except a formal record on the files of some court. (Knapp v. Roche, 82 N. Y. 366.) An order embodying the decision of a court is not itself a judgment, but merely a warrant and guide for the clerk of a court to enter a judgment.

This action was brought to obtain a judicial construction of certain provisions of the will of Lorrain Freeman, deceased, and a codicil thereto. It is reported upon a former appeal in 88 M. Y. 561. The provisions of the will in question are as follows : “ Second.

The nature of the action and the material facts are stated in the opinion. Plaintiff being an incumbent of the office at the time of the passage of the act of 1877, his compensation was not affected by that statute..

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 7, 1884, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. (Reported below, 34 Hun, 143.) ^</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The statute of limitations is not a bar. (Laws of 1872, chap. 161, re-enacted in the Code of Civil Procedure, § 1925 ; Venice v. Breed, 62 N. Y. 471; Town of Venice v. Woodruff, id. 462; Miner v. Beekman, 50 id. 338 ; Hubbell v. Medbury, 53 id. 99 ; Arnold v. H. R. R. Co., 55 id. 661; Metzer v. A. & A. R. R. Co., 79 id. 171; Morse v. Gould, 11 id. 281; Waltermier v. Westover, 14 id. 16; Sullivan v. Brewster, 1 E. D. Smith, 681; Miller v. Moore, id. 739 ; McLaren v. Pennington, 1 Paige, 502; Bertholf v. O’Reilly, 84 N. Y. 509; Butterfield v. Rudd, 58 id. 479 ; Ryan v. Waule, 63 id. 57.) The plaintiff had the right to maintain this action under the statute of 1872 and the Code of Civil Procedure, § 1925. (Metzer v. A. & A. R. R. Co., 79 N. Y. 171; Ayers v. Lawrence, 59 id. 192 ; Hurlburt v. Banks, 1 Abb. N. C. 161; Hills v. P. Savings Bank, 26 Hun, 161.) The consents for bonding the' town of Salina were void, because they were all upon conditions as to location of route. (Craig v. Town of Andes, 93 N. Y. 405 ; Butternuts and Oxford Turnpike Co. v. North, 1 Hill, 518; Ft. E. & Ft. M. P. R. Co. v. Payne, 15 N. Y. 583; T. & B. R. R. Co. v. Tibbitts, 18 Barb. 298 ; People, ex rel. Averill, v. Adirondack Co., 57 id. 656.) The statute (Chap. 571, Laws of 1868) is void, for uncertainty, and is incapable of execution. (19 Wall. [U. S.] 132; Weatherhead v. Baskerville, 11 How. [U. S.] 329 ; 9 Humph. 272; Collins v. Hope, 20 Ohio, 492; Mitchell v. Mitchell, 6 Md. 224.) The consents are not authenticated as required by law and furnished no authority to the commissioner to suscribe for the stock or to issue the bonds. (People, ex rel. Spencer, 55 N. Y. 1; People, ex rel. Allen v. Knowles, 47 id. 419.) There can be no bona fide holders of bonds issued without authority of law. (1 Kent’s Com. 462; People v. Draper, 15 N. Y. 532; Potter’s Dwarris on Statutes, 118; Matter of N. Y. & B. B. Co., 72 N. Y. 527; Matter of Second Ave. M. E. Church, 66 id. 395.) There is no ground for exempting persons purchasing bonds in ignorance of jurisdictional defects from the effect of the resulting invalidity. (People v. Hurlburt, 59 Barb. 446 ; Taylor v. Porter, 4 Hill, 144; Culver v. Ft. Edward, 8 Hun, 390; People v. Barrett, 18 id. 206; Horton v. Town of Thompson, 71 N. Y. 513; Cagwin v. Town of Hancock, 84 id. 536 ; 76 id. 182; Maas v. M. K. & T. R. W. Co., 83 id. 223 ; 75 id. 400 ; 23 id. 457 ; 45 id. 772; 46 id. 110; 55 id. 1, 135; 70 id. 28; 74 id. 185 ; 4 Lans. 528; 5 id. 89.) Bonds issued without complying with conditions precedent are wholly void wherever found. Bona fides cannot be predicated of such bonds. (Jones on Mun., §§ 223, 226, 230, 297, 299; Marsh v. Fulton, 10 Wall. 676; Humbolt v. Long, 92 U. S. 642 ; McClure v. Oxford, 94 id. 429; Oakland v. Zdbriskie, 101 id. 601 ; Anthony v. Jasper Co., id. 693 ; Cagwin v. Hancock, 84 N. Y. 532; S. Ottawa v. Perkins, 94 U. S. 260 ; Loan Assn. v. Topeka, 20 Wall. 655 ; Wilson v. Town of Caneadea, 22 Hun, 218; Starin v. Genoa, 23 N. Y. 439; Gould v. Sterling, id. 456 ; People v. Mead, 24 id. 114.) The statute is unconstitutional and void, because it does not provide for a hearing before any court, officer or tribunal. (1 Kent’s Com. 623 ; 3 Story’s Com. on Const. 264, 661; Smith on Stat. and Const. Construction, 447; Embury v. Connor, 3 N. Y. 511 ; Varrick v. Smith, 5 Paige, 159; Matter of Albany Street, 11 Wend. 149; Bloodgood v. M. & H. R. R. Co., 18 id. 56; Westervelt v. Gregg, 12 N. Y. 212; Stuart v. Palmer, 74 id. 183 ; People v. Batchelor, 53 id. 73; Weismer v. Village of Douglass, 64 id. 91; Matter of Deansville Cemetery, etc., 66 id. 569.) Due process of law means the process of law in common use and provided for by statute before the adoption of the Constitution of 1846. (Rockwell v. Nearing, 35 N. Y. 302 ; People v. Haines, 49 id. 587; Hartwell v. Armstrong, 19 Barb. 166.)</p> <p>A suit of this nature cannot be maintained by a tax payer in the absence of some enabling statute, giving to him the right or capacity to sue. (Doolittle v. Broome Co., 18 N. Y. 158; Roosevelt v. Draper, 23 id. 318 ; Lorrillard v. Monroe, 11 id. 392; Phelps v. Watertown, 61 Barb. 121.) This action could not in equity be maintained. (2 Story’s Eq. Jur., § 293; Calhoun v. Supervisors, etc., 28 Hun, 380, 395-9, 415; Craig v. Town of Andes, 93 N. Y. 405; 1 Dill. on Mun. Corp. [3d ed.], § 548; Society, etc. v. City of New London, 29 Conn. 194; Town of Potter, 8 Blatchf. 165.) Equity will not entertain a bill to remove a cloud upon title, or to cancel an instrument quia timet when it appears that the deed or mortgage supposed to create an obligation is void on its face, or void by evidence not exposed to destruction or loss, and always available as a legal defense. (Town of Venice v. Woodruff, 62 N. Y. 462 ; Story’s Eq., § 700 ; Haywood v. Buffalo, 14 N. Y. 534.) As the town officers may propose or threaten to pay an illegal and void bond or debt of any kind, and inasmuch as this has been held to be a threatened waste, the statute does give to the tax payer the. right of suit to prevent the issuing or even the payment of the debt as a waste of the corporate property or assets. (Lawrence v. Ayers, 59 N. Y. 192.) The constitutionality of the Railroad Bonding Acts is not open for consideration. (Rogers v. Stevens, 86 N. Y. 623; People v. Mayor, etc., 4 id. 419; Duanesburgh v. Jenkins, 57 N. Y. 177; Williams v. Duanesburgh, 66 id. 129.) The statute of limitations in equity begins to run, as at law, as soon as the party has a right to apply to the proper tribunal for relief. (Bruce v. Tilson, 25 N. Y. 144; Peters v. Delaplaine, 49 id. 363.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made at .the January term, 1884, which affirmed a judgment in favor of defendants, entered upon the report of a referee. (Eeported below, 31 Hun, 354.)</p> <p>This action was brought originally by George Hyland, the present plaintiffs’ intestate, for an allowance to him as administrator of the estate of Bernard Baxter, deceased, for advances made by him for the maintenance of the minor children of his intestate:</p> <p>Bernard Baxter died intestate May 27,1862, leaving a widow and three minor children, Mary, aged about eight years, Bernard, aged about two years, and Ella, aged about seven months, and a small personal estate. George Hyland (plaintiff’s intestate) and Bridget Baxter, the widow, were appointed administrators.</p> <p>Ho guardian was appointed for the children until May, 1872, when one Zimmer was appointed, who soon afterward instituted proceedings before the surrogate of Livingston county, where the intestate resided at the time of his death, for an accounting by the administrator. Hyland, on the return of the citation, appeared and presented his account. It was referred to an auditor to examine and report. It appeared on the accounting that after payment of debts and expenses of administration, and the distributive share of the widow, there remained of principal the sum of $827.50 for distribution under the statute to the three minor children of the intestate, not allowing the credit hereinafter mentioned. The children, after the death of Bernard Baxter, m 1862, continued to live with their mother, Bridget Baxter, the co-administrator of Hyland, who cared for, supported and maintained them as one family for several years, the means for such support being supplied by Hyland at her request, and which were intended by him as an advancement upon their distributive shares in the estate of their father. These advancements were set out in the account of Hyland presented to the surrogate, and he claimed that they should be credited to him in the accounting.</p> <p>The auditor to whom the account was referred for examination reported that Hyland had paid and delivered to Bridget Baxter all the avails of the estate for which he was chargeable, and that the distributive shares of the minors were expended by her in providing them necessaries during their minority, and under such circumstances that, if she had been their general guardian, the expenditure would have been allowed her on her accounting as such guardian. But the auditor further reported that in his opinion Bridget Baxter had no right, as administrator of Bernard Baxter, to make such payments, and that the Surrogate’s Oourt had no power, upon the accounting of the administrators; to allow them as a credit on their account. The surrogate seems to have adopted the conclusion of the auditor, and pending an appeal to the Supreme Oourt from his decree disallowing the claim, this action was brought to have the amount advanced and expended for the support of the minor children applied in deduction or extinguishment of the sums adjudged against the administrators on account of the distributive Shares of the children. The appeal from the decree of the surrogate is still pending and undetermined.</p> <p>Even in an accounting by the guardian, the surrogate would have no authority to allow expenditures made before his appointment. (Clowes v. Van Antwerp, 4 Barb. 418.) And as to expenditures made by a guardian after his appointment, the surrogate cannot allow or pass on the same until the infant becomes of age, though, prior to such majority, the surrogate is clothed with authority by statute to require an annual account and the filing thereof in his office. (Draker v. Anderson, 37 Barb. 168.) The relief demanded in the complaint, though without the statutory jurisdiction of the surrogate, is within the equity jurisdiction of the Supreme Court. (In re Kane, 2 Barb. Ch. 375 ; Wilkes v. Rogers, 2 Johns. 566; Fonda v. Penfield, 56 Barb. 504; Brandon v. Brandon, 4 N. Y. S. C. 385.) There being no concurrent remedy at law, the six-years limitation cannot apply. (Appleby v. Brown, 24 N. Y. 143; Rundle v. Allison, 34 id. 180; Hubbell v. Sibley, 50 id. 468; Mann v. Fairchild, 14 Barb. 558.) No right of action accrued against the beneficiaries or any person standing for them, until the appointment of the guardian. (Van Nest v. Lott, 16 Abb. 130; Van Tassell v. Van Tassell, 31 Barb. 439.) The case at bar comes within the lines of adjudicated cases as well as within the general principles of equity. (Hill v. Sandford, 11 Hun, 536; In re Bostwick, 4 Johns. Ch. 100 ; Kent’s Com. 103; In re Kane, 2 Barb. Ch. 375; Fonda v. Penfield, 56 Barb. 503; Brandon v. Brandon, 4 N. Y. S. C. 385.)</p> <p>This action cannot be maintained. The surrogate’s decree and the appeal therefrom duly pleaded are a bar to this action. (Schenck v. Dart, 22 N Y. 420; Robinson v. Raynor, 28 id. 494.) This action is barred by the statute of limitations. ( Van Hook v. Whitlock, 3 Paige, 409 ; Rosevelt v. Mark, 6 Johns. Ch. 266 ; Miller v. McIntire, 6 Peters [U. S.], 61; Borst v. Carey, 15 N. Y. 505; Van Tassel v. Van Tassel, 31 Barb. 439.) There is no equity in the plaintiff’s alleged cause of action, and the complaint was properly dismissed upon the merits. (Patterson v. Brown, 32 N. Y. 81; Martin v. Wagner, 60 Barb. 435.) As the proof shows that the plaintiff handed over these moneys to the widow in known violation of his duty as administrator, and in known violation of the statute, well knowing that she was insolvent, and did not intend to account for it as administrator, equity will not relieve. (Sherman v. Wright, 49 N. Y. 227; Howell v. Mills, 53 id. 322; Gillett v. Phillips, 13 id. 114.) No court of equity will protect even a guardian in expending more than the interest of his ward’s money. If permitted to go further it must only be in a ease of absolute necessity, of which the court must be fully satisfied. (Walker v. Witherell, 6 Ves. 472 ; 2 Perry on Trusts [3d ed.], 212, § 618; Lee v. Brown, 4 Ves. 362.) There is but one way for an administrator to manage and close up an estate, and that is the way pointed out by the law. If he departs from that way and pursues an unauthorized course, he alone must be the sufferer for it. (Hannahs v. Hannahs, 68 N. Y. 610.) The unlawful and unauthorized course adopted by the plaintiff in the disposition of these funds, having made it impossible to determine the precise rights of each one of the infants, he himself must be the sufferer if any one is harmed. (Brandon v. Brandon, 66 N. Y. 401 ; Hannahs v. Hannahs, 68 id. 612.) Where the property rights of infants are concerned, courts will exercise the most vigilant care in protecting their interests, and will hold guardians and all who are engaged in managing or disposing of their property to a rigid adherence to principles of good faith not only, but to a strict performance of every duty. (2 Perry on Trusts [3rd ed.], 212, § 618; Howell v. Mills, 53 N. Y. 326 ; Sherman v. Wright, 49 id. 227.)</p>

<p>Where a judgment is affirmed in this court without an opinion, and without formally adopting the opinion below, it is not to be understood that the affirmance is upon grounds substantially different from those taken below; on the contrary, the inference is the other way, as in case of such a difference the court would deem it proper to state the reason for affirmance .</p>

<p>Decided upon the facts.</p>