UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty library REPORTS OF CASES HOARD AUTJ DETERMINED IN THK SUPREME COURT OF THX STATE OF NEW YORK. MARCUS T. HUN, VOLUME XV, 1876. . BANKS & COMPANY, ALBANY, N. Y. 1906 Entered according to act of Congress, in the year one thousand eight hundred and seventy-six, BY BANKS & BKOTHBRS, in the office of the Librarian of Congress, at Washington. OP THE Q-EFERAL TERMS OF THE SUPREME COURT. First Department. Second Department. HON. NOAH DAVIS, P. J. HON. JOSEPH F. BARNARD, P. J. " JOHN R. BRADY, " JASPER W. GILBERT, " CHARLES DANIELS. " JACKSON 0. DYKMAN. Third Department. Fourth Department HON. WM. L. LEARNED, P. J. HON. JOSEPH MULLIN, P. J. " AUGUSTUS BOCKES, " E. DARWIN SMITH, " DOUGLASS BOARDMAN. " JOHN L. TALCOTT. of the First Judicial District. JOHN B. BEADY, GEOEGE 0. BAEEETT, IOAH DAVIS, OHAELE8 DONOHUE, ABEAHAM E. LAWEENCE, Second Judicial District. Fifth Judicial District. MILTON H. MEEWIN, JOSEPH MULLIH GEOEGE A. HAEDIN, JAMES NOXON, Sixth Judicial District. OALVIN E. PEATT, JASPEE W. GILBEET, WM. MUEEAY, Jr., DAVID L. FOLLETT, JOSEPH F. B AENAED, JAOX80N 0. DYKMAN. EANSOM BALOOM, DOU&LASS BOAEDMAN Third Judicial District. Seventh Judicial District. OHA8. E. INQALL8. WM. L. LEAENED, JAMES 0. SMITH, GEO. W. EAWSON, rHEODOEIOE.WE8TBEOOK,A.MELVINOSBOEN. OHA8. 0. DWIGHT, DAVID EUMSET. Fourth Judicial District. Eighth Judicial District. AUGUSTUS BOOKE8, * AMAZIAH B. JAMES, GEOEGE BAEKEE, CHARLES DANIELS, JOSEPH POTTEE, JDDSON 8. LANDON. JOHN L. TALCOTT, ALBERT HAIGHT. * Resigned. CA USES in which ike decisions contained in tfiese Reports hav* teen pawed upon by the Court of Appeals. HON. TOL. FA. AcxmcAn t. GORTON ............................................. 5 301 Ri^tntd, and judgment ordered for plaintiff and for a specific performance of the contract: September 2tf, 1876. AXNOT. EXECUTRIX, o. ERIK R. Co ................................. 5 606 Affirmed: November 21, 1876. BAKKRC. ARNOT ...... ........................................ 3 683 Affirmed : December 12, 1876. BAKER AND OTHERS t>. LEVER ..................................... S 114 Affirmed : November 14, 1876. BAIJ.ET t>. BERGEN ............................................ 9 520 Affirmed: November 28, 1876. BARTEAU t. PHOINIX MUT. LIFE INS. Co .......................... 1 480 Affirmed : November 28, 1876. BARTEAU 0. PHDKLL 9. PATOH 7 195 Appeal dismissed: November 28, 1876. UAHBR t. HJBEHNIA INS. Co. OF OHIO 6 862 Affirmed : November 14, 1876. MV&&H c. DODOB 4 26 Reversed, neio trial granted : September 19, 1876. MATTER OF DHANPYILLE CEMETERY ASSOCIATION 5 482 Order of General Term reversed and application denied: September 19, 1876. MATTER OF GARDNER 6 67 Order affirmed: December 19, 1876. MATTER OF PKCONET 5 434 Order affirmed : December 5, 1876. MATTER OF PROSPECT PARK AND CONST ISLAND R. R. Co. TO ACQUIRE TITLE TO LANDS IN KlNQS Co. OF WM. MOYNAHAN AND OTHERS 8 30 Orders affirmed, with costs of one appeal only: November 21, 1876. MILLER t. BARBER 4 802 Affirmed : September 19, 1876. MURDOCH e. WARD g 9 Judgment reversed and judgment ordered declaring the child of 0. F. Ward entitled to the fund in controoersy to the exclusion of the widow, costs of all parties to be paid out of tftefund : November 28, 1876. NICHOLS t>. N. Y. C. AND H. R, R, R Co. 4 827 Motion to dismiss appeal granted on payment of costs of appeal, and $10 costs of motion : October 6, 1876. PKOFLB EX REL. DBKAREST v. FAIRCHTLD g 334 Order affirmed : November 21, 1876. PEOPLE EX REL. GALLATIN NATIONAL BANK v. COMMISSIONERS OF TAXES, ETC 8 636 Affirmed: December 19, 1876. PEOPLE EX REL. MILLER . BOARD OF POLICE COMMISSIONERS. ... 6 229 Order of Supreme Court and of board of police commimoners rewned, and proceedings remitted for rehearing by the board: December 5, 1876. Vll HUN, VOL. FA6S. PEOPLE EX REL. VAN TASSEL v. SUPERVISORS OF COLUMBIA COUNTY, 8 375 Order of General Term reversed, and order of Special Term affirmed : November 21, 1876. PHILLIPS??. WHEELER 3 603 Order affirmed : O -itober 3, 1876. PHCENDC WAREHOUSING Co. v. BADGER 6 Affirmed : November 14, 1876. ftEAD o. DECKER 5 Affirmed : November 14, 1876. ROBINSON v. BRISBANE 7 Appeal dismissed on opinion of court below : December 13, 1876. ROEBLING v. DUNCAN 8 Order affirmed : November 28, 1876. . PHCENIX MUT. LIFE INS. Co ............................ 8 Reversed without costs, the cause being removed to the Circuit Court qf the United States, and the court below having no jurisdiction : December 19, 1876. SISTERS OF CHARITY OF ST. VINCENT DE PAUL . KELLY ......... 7 290 Judgment reversed and decree of s arrogate affirmed: Decembers, 1876. SLOMAN v. GT. WESTERN R. R. Co ...... . ..................... 6 648 Order of General Term reversed, and judgment on verdict affirmed; November 14, 1876. SPINNEK v. N. Y. C. AND H. R. R. R. Co. (see 2 Hun, 431) ........ 6 600 Affirmed : October 6, 1876. ONION DIME SAVINGS INST. v. BISPHAM ............. . ............. . 8 310 Order affirmed : October 3, 1876. WAIT v. RAY ..... ......................................... ..... 5 649 Affirmed: September 19, 1876. WALLACE t>. MAYOR ................................. . ..... ...... 8 Affirmed: September 19, 1876. WATKHJS v. WILCOX .............................................. 4 Affirmed: September 19, 1876. WHEELER t>. SCHOFIELD ...................... ............... , ...6 Appeal dismissed : November 14, 1876. WHITMORE v. MAYOR .......... . ............ .'.... Affirmed : September 19, 1876 WHITNEY t>. TOWNSEND Appeal dismissed: September 19, 1875. Tiii HUH, TOL. Wotox . Rurnux 7 15 Affirmed: November 21, 1878. Wcxwru . BAAB 6 285 Affirmed: Octobers, 1876. Youxc, ADKH., . HILL 6 613 Ordfr / General Term reverted, and that of Special Term affirmed : Number 14, 1876. N. Y. 0. AND H. R R R. Co 7 551 Affirmed: December 5, 1876. A TABLE NAMES OF THE CASES REPORTED IN THIS VOLUME. Aldrich, Stewart v. Aliger v. Keeler . Andrews v. Betts Drew v. v. Monilaws PAGE. 241 125 322 23 65 Ansonia Brass and Copper Co. v. Babbitt . . .157 Armstrong v. Fargo . .175 Arrowsmith v. Arrowsmith . 606 Auer, Mackey v. . .180 B. Babbitt, Ansonia Brass and Copper Co. v. . . .157 Bacon, Tooley v. . .176 Bancker v. Mayor . . 409 Barry v. Brune . . .395 Bast able v. City of Syracuse 587 Beach, Pres. Society of Knox- boro v. . . . . 644 Beecher, Moulton v. . . 100 Belden, Plummer v. . . 455 Benedict, Lange v. . . 362 Bertholf v. O'Reilly . .16 Betts, Andrews v. . . 822 Black well, Hasten v. . .313 Blakeslee, Hnbbell v. . . 603 HUN VOL. VTIL ii Bordeaux v. Erie Railway Co. 579 Bowery National Bank v. Mayor .... 224 Boyle v. City of Brooklyn . 32 Boynton, McParlin v. . Bradley v. McLaughlin Brady, Matter of Brooks v. Hathaway Brown v. Conger Brown v. Nicholson Brown v. People Brune, Barry v. . Burrows v. Whitaker . 449 545 437 290 625 464 562 395 260 c. Callaghan, Dusenbury v. . 541 Calvo v. Davies . . . 222 Cantrell, McVey v. . . 522 Campbell v. Smith . . 6 Carley, Hill v. . 636 Casbacker, Stephens v. .116 Chenango Bridge Co. v. Paige 292 City of Brooklyn, Boyle v. . 32 Guest v. . 97 People ex rel. Ackerly v. . . 5imer, People v. . . 588 Corn well v. Deck . .122 Coaghlin v. N. Y. C. and H. R R. R. Co. . . . 136 Covert v. Hughes . . 805 Craig v. Sw inert on . .144 Craighead, Hauck v. . . 237 Grouse v. Paddock . . 630 Culver v. Village of Fort Edward . . . . 340 Culver, McDonnell v. . .155 D. D. and H. Canal Co., Flem- ing v. . . . . 358 Dakin, Mechanics and Trad- ers' Bank v. . 43 1 Davies, Calvo v. . . . 222 Deck, Corn well v. . .122 Decker v. Gay lord . .110 Devereux, Village of Deposit v. 317 Devlin v. Shannon . .531 Dixon, People ex rel. R., W. and O. R. R. Co. v. . .178 Dolan v. Mayor . . . 440 Douglass v. Reilly . . 85 Drake, Young v. . .61 Drew v. Andrews . . 23 - v. Mayor . . . 443 Drohan, Comstock v. . .873 Duncan, Roebling v. . . 502 Dunphy v. Mayor . . 479 Dusenbury v. Callaghan . 541 Dusenbeny, Phillips v. . 848 E. Earle, Taylor v. . . . 1 Elkus, Von Hein v. . .516 El well v. Skiddy. . . 78 Ely, Span v. 255 Empire B. and M. L. ASBO. v. Stevens .... 515 Erie Railway Co., Bordeaux v. 578 McCaig v. . 599 Everett v. Lockwood . . 356 F. Fagan, Howe Machine Co. v. 174 Fairchild, People ex rel. De- marest v. . 334 Fargo, Armstrong v. . .175 Fellows v. Mayor . . 484 First Baptist Church of Rome, Norcott v. . . .639 Fleming v. D. and H. Canal Co. .... 358 Foster v. Hawley , . .68 Fowler, People v. . . 233 Franklin v. Schermerhorn . 112 Frost v. Yonkers Savings Bank 26 a. Gainey, People v. Gale v. Mayor Gallagher v. Vought Gaylord, Decker v. 60 370 87 110 Gifford, Town of Chautauqua v. . . . . . 152 Gilbert, Herrman v. . . 253 Ginna v. Second Avenue R. R. Co 494 Grey v. Voorhis . . .612 Guest v. City of Brooklyn . 97 H. Haley v. Wheeler Hampton, Inslee v. Hanmer, Pope v. Hathaway, Brooks v. Hauck v. Craighead Hawley, Foster v. 569 230 265 29C 237 68 TABLE OF CASES REPORTED. Hazard v. N. Y. and Erie Bank . . . .613 Helmer v. St. John . .166 Herrman v. Gilber; . . 253 Hicks v. Marshall . .327 Hill v. Carley . . .636 -- Lattimer v. . .171 - v. Newichawanick Co. . 459 -- v. Syracuse, B. and N. Y. R. R. Co. . . 293 Hinman v. People . . 647 Holt, McKinney v. . . 336 Hook v. Pratt . . .102 Horton, People ex rel. Stan- ton v ..... 357 Hotchkiss v. Platt . . 46 Howe Machine Co. v. Fagan 174 Howell v. Van Sicklen . 524 Hubbard v. O'Brien . . 244 Hubbell v. Blakeslee . . 603 Huot, Simon v. . . . 378 Hughes, Covert v. . . 305 I. Inslee v. Hampton . . 230 J. James, Ward v. . . . 526 Johnson, Mabie v. . . 309 K. Keeler, Aliger v. . . 125 Kent v. Reynolds . . 559 King, Stan ton v. ' . . 4 Kingsley, People v. . . 233 Knickerbocker Life Ins. Co. v. Nelson . . .21 Knntz v. Licht . . .14 Lake Shore and M. S. R. R. Co., Onthank v. . .131 Lange v. Benedict . . 862 Lattimer v. Hill . .117 Law, Ruhe v. Lawrence, Wilson v. Le Clare v. Stewart Licht, Kuutz v. . Lillis v. O'Conner FA0B. . 251 . 593 . 127 . 14 . 28C Lockwood, Everett v. . . 356 Long Island City v. Long Island U. R. Co. . . 58 Long Island R. R. Co., Long Island City v. . . .58 Loomis v. Mo wry . . 311 M. Mabie v. Johnson . . 309 Mackey v. Auer . . .180 Mackie, Norton v. . . 520 Marckwald v. Oceanic Steam Nav. Co. . . . 547 Manley, Thayer v. . . 550 Marshall, Hicks v. .. .327 Masten v. Blackwell . .313 Matter of Brady . .437 Moore . . 513 N. Y. Catholic Pro- tectory . . . .91 Matter of N. Y. Prot. Epis. Pub. School . "'." .457 Matter of Prospect Park and C. I. R. R. Co. . . 3C Matter of Rhinebeck and Conn. R. R. Co. . . 34 Matter of Woven Tape Skirt Co. .... 508 Mayor, Bancker v. . . 409 Bowery Nat. Bank v. 229 Drew v. . . . 443 Dolan v. . . 440 Dunphy v. . . 479 Fellows v. . . 484 Gale v. . . . 370 N. Y. Balance Dock Co. v. . I *''. . . 247 Mayor, Peters v. . . 405 Peyser v. . .413 Ill TABLE OF CASES REPORTED. MM Mayor, Sheridan v. . .42 Max on v. Reed . , .618 McCaig v. Erie Railway Co. 599 McClure, Moore v. . .557 McDonnell v. Culver . . 155 McKinney v. Holt . . 336 McLaughlin, Bradley v. . 545 McParlin v. Boynton . . 449 MoVey y. Cantrell . . 522 Mead v. Stratton . .148 Walsh v. . , . 387 Mechanics and Traders' Bank v. Dakin . . .431 Merchants' Bank v. Union R. R. and Trans. Co. . . 249 Merritt v. Village of Port- cheater . . . .40 Messenger, Record v. . . 283 Millington, Waggoner v. . 142 Minar, Palmer v. . . 342 Mitchell, Nash v. . .471 Monilaws, Andrews v. . . 65 Moore, Matter of . .513 Moore v. McClure . . 557 Moore, Tisdale v. . .19 Mott v. Mott . . .474 Monlton v. Beecher . . 100 Mo wry, Loomis v. . .311 Munro v. Whitman . . 553 Mnrdock v. Ward . . 9 Murray, People ex reL Bab- cock v 577 Myer v. People . . .538 N. Nast v. Mitchell . . .471 Nelson, Knickerbocker Life Ins. Co. v. . . .21 Newichawanick Co., Hill v. 459 Nicholson, Brown v. . . 464 Norcott v. First Bap. Church of Rome . . . 539 Norton T. Mackie . 520 N. Y. Balance Dock Co. v. Mayor .... 247 N. Y. Catholic Protectory, Matter of . . .91 N. Y. Cotton Exchange, Peo- ple ex rel. Elliott v. . 216 N. Y. and Canada R. R. Co., Town of Essex v. . .861 N. Y. C. and H. R. R> R. Co., Coughlin v. . . .136 N. Y. C. and H. R. R. R. Co., Peck v. . . . . 286 N. Y. and Erie Bank, Hazard v 613 N. Y. Prot. Epis. Public School, Matter of . . 457 O. O'Brien, Hubbard v. . . 244 O'Conner, Lillis v. . . 280 O'Reilly, Bartholf v. . .16 Oceanic Steam Nav. Co., Marckwald v. . . .547 Onthank v. Lake Shore and M. S. R. R. Co. , 131 P. Paddock, Crouse v. Paige, Chenango Bridge v. . Palmer v. Minar . Pardee v. Wood . Parmelee v. People Peabody, Williams v. . Peck v. N. Y. C. and H. R. R. Co. People, Brown v. v. Conner v. Fowler v. Gainey . Hinman v. . v. Kingsley Myer v. . Parmelee v. Co. R. 630 292 342 584 623 271 236 562 533 233 60 647 233 528 623 TABLE OF CASES REPORTED. xm 577 334 VAOB. People, Pickett v. . . 3 Sauserv. . .302 People ex rel. Ackerly v. City of Brooklyn . . .56 People ex rel. Babcock v. Mur- ray . . People ex rel. Demarest v. Fairchild People ex rel. Elliot v. N. Y. Cotton Exchange . .216 People ex rel. Gallatin Nat. Bank v. Commrs. of Taxes 536 People ex rel. R., W. and O. R. R. Co. v. Dixon . .178 People ex rel. Shaw v. Scott 566 People ex rel. Stanton v. Hor- ton .... 357 People ex rel. Van Tassel v. Supervisors . . .275 Peters v. Mayor . . 405 Peyser v. Mayor Phillips v. Dusenbury Phoenix Mutual Life Ins. Co., Shaft v Pickett v. People Platt, Hotchkiss v. Plummer v. Belden Pratt, Hook v. . Prentice v. Whitney . Pres. Soc. of Knoxboro v. Beach ... . Prospect Park and C. L R. R. Co., Matter of .30 Pope v. Hanmer . .265 Post v. Weil Powell, Rollwagen v. . Q. Quain v. Russell . .319 B. Record v. Messenger . . 283 Reed, Maxon v. . . . 618 Reilly, Douglass v. .85 413 348 632 83 46 455 102 300 644 418 210 PAB. Reynolds, Kent v. '.' .559 Reynolds, Smith v. . 128 Rhinebeck and Conn. R. R. Co., Matter of . 3* Roebling v. Duncan . . 502 Rollwagen v. Powell . 210 Ross v. Wood -", . .185 Rugen v. Colling . . 384 Ruhe v. Law . . . 251 Russell, Quain v. . .319 S. Sauser v. People . . 302 Saw-mill Co. v. City of Brook- lyn .... 37 Schermerhorn, Franklin v. . 112 Scott, People ex rel. Shaw v. 566 Second Avenue R. R. Co., Ginna v. ... 494 Shaft v. Pho3nix Mut. Life Ins. Co. .... 632 Shannon, Devlin v. . .631 Shelbourne, Todd v. . .510 Sheridan v. Mayor . . 424 Sherman v. Town of Ham- burg Simmonds, Wills v. Simon v. Huot Skiddy, Elwell v. Skidmore v. Collier . Smith, Campbell v. v. Reynolds . Span v. Ely Spelman v. Terry Stanton v. King . Stephens v. Casbacker. Empire B. and M. L. Asso. v. Stewart v. Aldrich Le Clare v. St. John, Helmer v. Stratton, Mead v. Supervisors, People ex rel. Van Tassel v. . 643 189 378 73 50 6 128 255 205 4 116 515 241 127 166 148 275 XIV TABLE OF CASES REPORTED. Mfc SwituTton, Craig T. . .144 Syracuse, B. and N. Y. R, R. Co., HU1 v. . . .296 T. Taylor v. Earle 1 Terry, Spelraan v. . . 205 Thayer v. Manley . . 550 Tisdale v. Moore . .19 Todd v. Shelboarne . .510 Tooley v. Bacon . .176 Town of Chautauqua v. Gif- ford . . .152 Town of Essex v. N. T. and Canada R. R. Co. . .361 Town of Hamburg, Sherman v 643 Turner, Vrooman v. .78 TJ. Union R. R. and Trans. Co., Merchants* Bank v. . .249 V. Van Order v. Van Order . 315 Van Sicklen, Howell v. . 524 Village of Deposit v. Dev- ereux . . . .317 Village of Fort Edward, Cul- ver v 340 Village of Seneca Falls v. Zalinski . .571 Village of Portchester, Mer- rill v 40 Von Hein v. Elkus . . 516 Vorhis, Grey v. . . .612 Vought, Gallagher v. . .87 Vrooman v. Turner . . 78 W. Waggoner v. Millington . 142 Walsh v. Mead . . .387 Ward v. James . . . 526 Ward, Hurdock v. . .9 Weil, Post v. . . .418 Wkeeler, Haley v. . .569 Whitaker, Burrows v. . 260 Whitman, Munro v. . . 553 Whitney, Prentice v. . . 800 Williams v. Peabody . .271 Wills v. Simmonds . .189 Wilson v. Lawrence . 593 Wood, Pardee v. . .584 Ross v. .185 Woven Tape Skirt Co., Mat- ter of . . 508 Yonkers Savings Bank, Frost v. . . . . .26 Young v. Drake . . .61 Z. Zalinski, Village of Seneca Falls v. . . 671 TABLE OF CASES CITED. I Disapproved. t Distinguished. Followed. A. s PAOB, Adams v. Curtis . . 4 Lans. 165 . . 316 Akerly v. Vilas . . . 24 Wis. 165 . .436 Alexander v. Parsons . 2 Lacs. 333, 357 . 228 Allaire v. Hartshouse . 1 Zab. 665, 673 . 512 Allen v. Brown . , . . 5 Lans. 514 . . 48 /M "\X7-mSrt mn . 12 Pick. 302 . . 250 c/ W lltit-lIllS Andrews v. Durant . . 11 N. Y. 35 . . 245 Angel v. Coon . 38 N. Y. 378 . . 402 Archer v. Hubbell . 4 Wend. 514 . . 173 Ayers . Western R. R. Co. . 49 N. Y. 660 . 524 Atlantic Dock Co. v. Mayor . 53 N. Y. 64 . 544 Austin v. Monro . . . 47 N. Y. 360 . 5 Ayrault v. Pacific Bank . 47 N. Y. 570 . . 894, 427 B. B. and A. B R. Co . Sbanly 107 Mass. 568 . 258 Bs'.iicr B Harder . 6 N. Y. S. C. (T. &C.)440 307 Pone < 5 N. Y. 8. C. (T. &C.)102 . 17 113, 320 A. T>SVnn . 2 Hun, 556 . . 821 . 2 Denio, 136 . ; . 239 Baldwin v. City of Buffalo . 35 N. Y. 375 . . 357 1ft A HI* QPQ AQ Ballina. Dillaye . . 4 1O ivUU. O')O . 37 N. Y. 35 . . . 09 . 82 Bank of Chemung v. City of Elmira . 53 N. Y. 53 . . 95 Bank of the Commonwealth v. Mayor 43 N. Y. 184 . . 416, 417 Bank of Utica v. Finch . 3 Barb. Ch. 293 . 606 Bank of Rochester v. Jones 4 N. Y. 497 . . 250 Barker v. Woods . . 1 Sandf. Ch. 129 . 467 Barlow v. Pease . 5 Hun, 564 . . 285 Barnes v. Underwood . 47 N. Y. 351 . 470, 471, 610 Barney t>. Burstenbinder . . 64 Barb. 212 . . 258 B TTHth n TTT_ J tZKK. OQO Barry v. Equitable Ins. Co. . O W CD.Q. 000 . . 59 N. Y. 587 . . . doa . 400 Barton v. Beer . 35 Barb. 78 . . 478 . 37 Barb. 293 . . 592 Bascomb . B. and S. L. R R Co. . 27 Barb. 221 . . 229 Basset . U. 8 . 9 Wall. 38 . . 866 Baxter . Portsmouth . 5 B. & C. 170 . . 331 ZT1 TABLE OF CASES CITED. Bayley . M. S. and L. R R Oo. Beach r. Beach . r. Endrees Bealse. See Beddoe e. Wadsworth Behreo r. McKenzle Bell t. Town of Ksopus . Bellows v. Sackett Belmout Bank c. Hoge Bolton r. Baxter . Benedict r. Johnson Bennett t. Judson . Beuton t. Martin . Bent t. Armstrong Billington t>. Wagoner Bingham v. Weiderwax , Bissell c. X. Y. C. R R Co. Blake e. Douglass Blatchley v. Moser Bleakley 0. White Blydenburgh v. Cotheal Bogart v. Steamboat John Jay Booth t. Powers Boston v. Worthington Bostwick v. B. and O. R R Co. . Bowen v. Bowen Boyd & Suydam v. Hitchcock Bradley v. Fisher t Brandon . People Brass . Worth Brewer . Salisbury Brewster n. Silence v. City of Syracuse Bridgeport Fire Ins. Co. 9. Wilson Bridger e. Pierson Brookman n. Hamill Brown e. Comstock e. Joddrell . . Puntz . . . 9. Smith . 9. Tapscott Bruce t>. Wright . Buel t>. N. Y. Cent R & . Burckle . Eckart . . Burhans v . Tibbits Burr v. Beers Burwell v. Knight Qunpltoll . Brush . . . Cassin . Delany . >& ., Cayuga Co. Nat. Bank v. Daniels Cent. Nat. Bank of N. Y. v. Arthur Cesar v. Karats .... Chamberlain v. Dempsey . Chambersburg Savings Bank . McLellan Channon v. Lusk . Chapin v. Fellowes ,, Chapman v. City of Brooklyn v. Hatt Chase . N. Y. Cent. R. R. Co. . Cheang-Kee v. U. S. , -. . Chenango Bridge Co. v. Lewis C. Q. and B. R. R. Co v. Park . Christophers. Austin Chubbuck v. Vernam Church v. Brown City of Brooklyn v. Brooklyn City R R. Co. City of Chicago v. Robbins City Savings Bank v. Bidwell Clancy v. Byrne Clark v. Carrington . Eighth Ave. R. R Co . Clayton v. Wardell . Clemence . Auburn Coffin v. N. Y. Cent. R. R. Co. . Cole . Hughes .... Collamer . Foster Collins v. N. Y. C. and H. R. R. R Co. V. Sinclair . . . Com. Bank of Kentucky v. Varnum Com. Bank of Rochester . City of Rochester Commonwealth v. Griffin . v. Moore . Conderman v. Hicks . . Conbocton Stone Co . B., N. Y. and Erie R. R. Co. Connolly v . Poillon Conrad v. Trustees of Ithaca Corn Ex. Ins. Co. v. Babcock Corning v. Gould .... Cosgrove . Ogden Cotton v. Cotton w Htm VOL. Vm. iii MML 23 N. Y. 106 . . 71 87 Barb. 458 . . .512 5 Binney, 184 . . 378 23 N. Y. 286 . . Ill 4 Hun, 509 . . . 389 1 Paige, 398 . . .54 SCaines, 293 . . 198 38 N. Y. 178 . 289 47 N. Y. 631 . .250 2 Sweeney, 194 . .456 60 N. Y. 229 . . 258 22 How. 356 . . 45 76Penn. 203 . . 123 2 Lans. 211 . . 825 36 Conn. 132 . . 399 40 N. Y. 372 . . 417 11 Wend. 41 . 632 26 N. Y. 523 . 581 8 Wall. 321 . . . 866 63 Barb. Ill . . . 294 18 HI. 460 . . 581 11 N. Y. 216 . 339 42 N. Y. 432 . 412 21 N. Y. 815, 830 . 423 47 N. Y. 481 . . 576 2 Black (U. S.) 418 . 575 29 Barb. 325 . . .454 56 N. Y. 120 . . 891 7 Cranch, 308 876 36 N. Y. 135 . . 498 4 N. Y. 230 . . . 71 4 Hun, 386 . . . 693 ( 64 Barb. 379 ; affirmed, 56 1 N. Y. 632 . . . 299 54 N. Y. 444 . 157, 243 26 Vermont, 757 . ' . 199 5 Hun, 504 . . .600 51 m. 328 . . .49 6 Lans. 97 98 43 Barb. 488 . 21 Pick. 525 . 6 Mete. 243 . 3 Lans. 108 . 52 Barb. 390 . 415 805 . 805 . 84 . 891 41 Barb. 366; 41 N. Y. 619 n 257 16 N. Y. 158 . . . 89 42 N. Y. 613 . . .68 16 Wend. 531 . . 477 49 N. Y. 255, 257 . . 287 42 Beavan, 67 . .470 1VU1 TABLE OF CASES CITED. Coulter 0. Am. M. U. Bxp. Go. . Cox0. Hickman . CraigD. Parkta . Crary 0. Goodman . Crist 0. Armour .... Crocker r. New London and P. B, R. Oo. Crofoot 9. Bennett . Crooke 0. Andrews Cross 0. O'Donnell Cunningham 0. Cunningham . Curtis 0. Brooks ... Currier 0. Webster D. Daniel 0. Metropolitan R R. Oo, Dane 0. Lady Kirkwall . Darlington 0. The Mayor . Davis 0. Pattison . . 0. The Seneca Day 0. Pool Dean 0. Borchsenius Decker 0. Matthews De Mott 0. McMullen Dewey v. Osborn . Dexter 0. Bevine . Dobson 0. Pearce . . Dolan 0. Mayor . . Doolittle 0. Tice . Douglass 0. Hoag . 0. White Bounce 0. Dow . . Downing n. Marshall Draper v. Henningsen Dubois 0. Miller . Duffy 0. McManus . Dumpor's Case . . Duncan 0. Bellini . Dung Parker Dnnlap 0. Hawkins Durbrow 0. McDonala Dutton 0. Willner . Dickinson 0. City of Worcester Dinehart 0. Wells . Dygert 0. Remerschneider 5 Lans. 67 SHofL. Cases, 813 40 N. Y. 181 . 22 N. Y. 170, 175 84 Barb. 378-887 24 Conn. 249 . 2 N. Y. 258 . 40 N. Y. 547 . 44 N. Y. 661 . 3 Dow. P. C. 481 87 Barb. 476 . 45 N. H. 233 . L. R. 8 C. P. 223 . 8 C. & P. 679 . . 81 N. Y. 186 . ' . 24 N. Y. 824 . . 18 Am. Jur. 486 . 52 N. Y. 416 . . 30 Wis. 236 . . 12 N. Y. 313 . . 8 Abb. Pr. (N. 8.) 335 4 Cow. 329 . . 42 Barb. 573 . . 2 Kern. 165 . . 6 Hun, 506 . . 41 Barb. 182 . . 1 Johns. 283 . . 8 Barb. Ch. 624 . 57 N. Y. 16 . . 37 N. Y. 380 . . 1 Bosw. 614 . . 5 Hun, 332 . . 3 E. D. Smith, 658 . ( 1 Smith Leading Cases ( Am. ed.), 128 60 N. Y. 151 . . 52 N. Y. 496 . . 2 N.Y. 8. C. (T. & C.) 292, 5 Bosw 131 62 N. Y. 312 . . 7 Allen, 22 . . 2 Barb. 432 . . 82 N. Y. 629 . 487 (6th 270 802 584 264 33 246 71 628 199 331 98 78 824 452 99 551 307 570 264 187 492 269 232 58ft 452 52 456 321 613 423 . 627 299 548 . 638 .399 .591 .281 . 627 Eadie 0. Slimmon Elliot 0. Ince Elliott 0. Pell Elmendorf 0. Mayor E. 26 N. Y. 9 . . .400 7 DeG. M. & G. 476 . 831 1 Paige, 263, 268 .405 25 Wend. 693 IT TABLE OF CASES CITED. xix Elwood v. West. Un. TeL Co. Embree v. Hanna Emery v. Pease . . Enright v. People . '/*" Evans v. Harris . / V" v * Everitt v. Everitt . . Ex parte Aiscough. . . Bellett Lange . Lange . . Langdale . . . Sibbald . F. Fearn v. Bowers (cited in Lickbarrow v. Mason) . Ferrier v. Wyse .... Ferrin . Myrick .... Field v. N. Y. Cent. R. R. Co First Nat Bank of Gin. v. Kelly . Fish v. Dodge Flagg v. City of Worcester Fleetwood v. Mayor . . Flower v. Lance . . . Fobes v. Shallock . Forbes v. Appleton Foot v. Bronson . . . Fowler v. Seaman . Freathy v. Freathy Frecking v. Holland . . Frisbie . Larned .... Frost v. Knight .... Furman v. Coe G. Gage 0. Brewster . Gale v. Clark Gardner v. Keteltas 1>. Ogden . Garighe 0. Losche . Garnsey v. Rogers . Gaskin v. Meek Gennond v. Jones . Getty v. Binsse Gillespie v. Torrence Goodrich v. Thompson Gosling is. Higgins Gould v. Gould v. Moring . 45 N. Y. 549 . 428 , 5 Johns. 101 . . . 382 20 N. Y. 62 . 184 21 How. 383 . . , 304 19 Barb. 416 . 263 29 N. Y. 39, 75 467 2 P. Wms. 591 214 7 Cox, 297 . 214 18 Wall. 163 . 364 , 18 Wall. 191, 195 367 18 Vesey, 301 555 12 Peters, 492 436 j. 1 Sin. L. C. (7th Am.ed.) 1162 250 3 Bland. Ch. (Maryland) 51 351 41 N. Y. 315 . 5 32 N. Y. 350 . 600 57 N. Y. 34 . 250 4Denio, 311 . 391 13 Gray, 601 . 590 2 Sandf. 475 . 415 59 N. Y. 603 . 416 22 Barb. 570 . 325 5 Cush. 117 . 415 4 Lans. 47 591 40 N. Y. 592 . 157 42 Barb. 641 . 317 53 N. Y. 422 . 473 21 Wend. 450 . . 586 j L. R. 5 Exch. 322 ; L. R. 7 j Exch. Ill . 204 1 Caines' Cases in Error, 96 . 123 81 N. Y. 218 . 377 ( N. Y. Weekly Dig. vol. 1, No. 1 10, p. 207 . 439 8 Hill, 330 . 339 22 N. Y. 327 . 208 6 Abb. 284, re. 456 47 N. Y. 233 . . 8, 223 42 N. Y. 186 . 491 2 Hill, 569 . 568 49 N. Y. 385 . 169 25 N. Y. 810 . 233 44 N. Y. 324 . 299 1 Camp. 451 . 77 29 How. 441 . 317 28 Barb. 444 . 111 XI TABLE OF CASES CITED. Graham . Pinckney Grant *. Morse c. Poilloa . Green t>. The Mayor Greene . The Mayor . . Herder . Greenvault . Davis Grimes t. Hillenbrand Griswold t. Miller . G ui 1 ford r. Supervisors of Chenango H. Haas t>. O'Brien . Hall . City of Buffalo . Wilson Hallas v. BeU Halsey t>. Carter . Ham . Jez Hammett n. Linneman Hanlon t>. Supervisors Hanse t>. Cowing . Hathaway t>. Town of Homer ilarger c. Wilson . Harnan v. Brotherson Harris v. Jex v. People . c. Youman . . . Hart v. Deamer . . Hartleys. Harrison . Hartness t>. Thompson Haskins v. The People Hatfleld t. Sneden . Hayes v. Phelan Hepburn v. School Directors of Carlisle Hewlett e. Brown . Hier v. Staples Higgins v. Watervliet T. and R R Co. Hill . Northrup . Billiard v. Goold . Hinsdell v. Weed . Hoagland v. Miller. Hochster v. De La Tour . Holman v. Hobson . Holmes v. Remsen Hopkins v. Lee . . . . McLaren Houser t. The People . . Hovey t>. Rubber Tip Co. . Howard r. Norton PAttK 7 Robt. 147 . . . 84tf 22 N. Y. 828 . . . 412 20 How. (U. S.) 168 . . 324 2 Hilt. 208, 209 . 51C 60 N. Y. 808 . . 459 7 Robt. 455; 80 How. 210 . 456 4 Hill, 648 . .543 11 8. C. N. Y. 854 . . 847 15 Barb. 523 . . .829 3 Kern. 143 99 ( Court of Appeals, not yet I published. . . .519 . IKeyes, 193 . . . 247 . 16 Barb. 548, 549 . 511 53 Barb. 247 . 268 . IDuer, 667 . . .232 . 66 Barb. 282 . . . 20 . 48 N. Y. 406 . . 33 . 57 Barb. 383 . 98 . 2 Lans. 288 . , .391 . 5 Lans. 267; 54 N.Y. 655 153, 154 . 63 Barb. 237 . . . 512 . 1 Denio, 537 . . . 366 . 55 N. Y. 421 . . . 295 . 59 N. Y. 599 . . . 492 . 1 Hoff. Ch. 178 . 351 . 6 Wend. 497 . . 329 . 24 K Y. 170 . . . 118 . 5 Johns. 160 . .854 . 16 N. Y. 344 . . 804 . 54 N. Y. 285, 287 . 470, 610 . 4 Hun, 733; 5 id. 335 ./ 320, 321 . 23 Wall. 480 . . . 539 . 7 Abb. 74; 1 Bosw. 655 . 456 . 51 N. Y. 136 . . .68 . 46 N. Y. 23 . . 287 4 N. Y. S. C. (T. & C.) 120 . 847 . 34 N. H. 230 . . . 580 5 Denio, 172 . . 75, 78 . 16 Abb. Pr. 103 . . 629 . 2 Ellia & B. 678 . . 202 . 8 Humph. 127 . . 512 . 20 Johns. 229 . . 382 . 6 Wheat. 113 . 438 . 4 Cow. 667, 679 . . 881 . 46 Barb. 33 . .304 ( 12 Abb. (N. S.) 860; 50 N. Y. | 835 . . . .48 , 65 Barb. 167 . .586 TABLE OF CASES CITED. liowell v. Christy . . Mills . . Rowland . Greenway v. Woodruff Hoyt v. Adee v. Bounett Hubbard . Curtis Ingalls v. Lord Ingersoll . Hall limes v. Purcell Irvin v. Fowler . "Wood Jackson v. Brookins . Dunsbaugh v. Osborn . v. Woodruft Jacobs t>. Hell James v. James Jefltersonville R R. Co. . Rogers Jenkins v. Waldron Jones v. Grant e. Hibbert . t>. Percival Johnson v. Kelly . 9. Zink Juliand v. Rathbone Justice v. Lang I. J. SLans. 242 , . 63 N. T. 322 . . 22 How. (U. S.) 491 . 60 N. Y. 73 . . 8 Laus. 173 . . 58 Barb. 529; 50 N. Y. 538 2 Allen, 328 . . 11 How. Pr. 149 . 49 N. Y. 132 . . 5 Hun, 612 . . 3 Sandf. 689 . . 13 Mass. 153 . . 19 Pick. 459 . 1 Cow. 240 . . 80 Barb. 392 . . 2 N. Y. 8. C. (T. & C.) 541 5 Robt. 482 . . 4 Robt. 138 264 353 77 548 329 302 512 236 490 96 36 381 243 551 543 528 391 391 5 Hun, 530 . . 129, 321 1 Johns. Cases, 92 . .423 2 Wend. 555 . . . 564 1 Cow. 286 . . . 270 2 Leigh (m. p.), 393 . . 376 4 Paige, 115 . . . 352 38 Ind. 116; 10 Am. Rep. 103 . 581 11 Johns. 114 . . 366 10 Paige, 348 . .405 2 Starkie, 304 . . 512 5 Pick. 485 . . . 134 9 N. Y. S. C. (2 Hun) 189 184 52 Barb. 396 . . 374 89 N. Y. 369 . . . 518 52 N. Y. 323 . . 432, 434 Kavanagh v. City of Brooklyn Kay . Whittaker . Keegan v. Western R R Co. Kellogg v. Richards . Kel'jey v. Clay King v. Brooklyn . v. Home Kirby v. Boylston . Kitchen v. Place K nickerl>acker 0. De Freest . Seymour Konitzky v. Meyer . Kortrigut v. Cady . 38 Barb. 234 . 44 N. Y. 565, 576 8 N. Y. 175 14 Wend. 116 4 Bibb, 441 . 42 Barb. 627 . Cowper, 683 . 14 Gray, 249 . 41 Barb. 465 . 2 Paige, 304 . 46 Barb. 198 . 49 N. Y. 571, 576 21 N. Y. 343 . . 590 . 404 . 257 . 586 325 . 40 . 805 . 390 . 144 850, 354 . 470 . 876 28, 296 Xlll TABLE OF CASES CITED. Lapatoy *>. Griereon Lawrence 0. Barker . f Lawrence . Fox . . . For . 0. French Lassence 0. Tierney Lamb r. Grover Lancaster Co. Nat Bank . Moore L.-mdon 0. Mayor . Landt 0. Hilts . Lane 0. Gould Leather 0. Poultney Leavenworth 0. Brockway Lee v. Village of Sandy Hill Leigh 0. Paterson Leitch t>. Wella Leland 0. Tousey . Lemon v. Phoenix Life Ins. Co. . Leonard 0. Stover . Lignot 0. Redding . . . Li pi- 0. Eisenlord . Litchfleld 0. Vernon . White Livingston 0. McDonald . 0. Proseus Lobdell 0. StoweU . Lomer 0. Meeker . Long 0. N. Y. Cent R. R Co. Longendyke 0. Longendyke Lord 0. Ostrander . . . 0. Wilkinson Lori Hard 0. Town of Munroe Lowell 0. B. A. and L R. R. Co. Luce 0. Dunham . Lynch 0. Crary 1 H. L. Cases, 498; 8 Scotch Seas. Cases (3d series), 47 . 71 M. 5 Wend. 301 80 N. Y. 368 20 N. Y. 268 25 Wend. 448 McN. & G. 551 47 Barb. 317 . 12 Alb. Law Jour. 185 49 How. Pr. 218 19 Barb. 283 . 10 Barb. 254 . 4 Binney, 352 2 Hill, 201 . 40 N. Y. 442 . 2 J. B. Moore, 588 . 48 Barb. 641, 648 6 Hill, 328 . 88 Conn. 294 . 115 Mass. 86 . 4 E. D. Smith, 285 . 32 N. Y. 229 (opp. p.), 238 41 N. Y. 123 . 8 Seld. 438 . 21 Iowa, 160 . 2 Hill, 526 37 How. Pr. 88 25 N. Y. 863 . 50 N. Y. 76 . 44 Barb. 366 . 43 Barb. 339 . 56 Barb. 593 . 11 N. Y. 392 . 23 Pick. 24 . 7 Hun, 202 . 52 N. Y. 183 . 173 . 9 81, 118, 174, 228 . 389 . 627 . 555 829, 332 486, 493 . 366 . 270 . 376 . 454 . 408 . 203 . 381 . 571 . 399 . 391 Mack 0. Patchin . Macomber 0. Parker . . . Magee 0. Badger . . -0. Cutler . . . Malcom 0. Rogers . Mallory 0. Norton .... Manhattan Brass and Mfg. Co. *. Thomp- son ..... Marine Bank 0. Wright Marsh 0. City of Brooklyn 0. Town of Little Valley . Marshall 0. Enox . . . . | 42 N. Y. 167 18 Pick. 175 84 N. Y. 247 43 Barb. 239 5 Cow. 188 21 Barb. 424 58 N. Y. 80 561 , 9P 124 591 339 325 430 299 317 232 310 40 576 470 434 339 264 810 57 535 353 478 48 N. Y. 1 . . .250 59N.Y.280 . . .88 4 N. Y. 8. C. 118 .644 16 Wall. 551; 8 Nat. Bank Reg. 104 . . 161 TABLE OF CASES CITED. Martin . Brooklyn e. Hawks . v. Hunter's Mason v. Brown .... . Denison .... Matter of Basford Bernstein . . Blodgett .... Burke .... Douglass .... Duff . Josephine Meyer .... N. Y. Prot. Epis. Public School Phillips . S. B. and N. Y. R R Go. Sharp .... Union Ins. Co. . Van Antwerp . Willoughby Winne . . Mayer v. Hellman Mayor of Albany v. Cunliff Mayor of Troy v. T. and 0. R. B. Co. . Maximilian v. The Mayor . Maxon v. Scott .... McCarthy v. Syracuse McCosker v. Golden McKay v. Draper .... McVeary . Mayor .... Meakings v. Cromwell Merchants' Ins. Co. . Hinman Merchants' Nat. Bank v. Comstock Mech. and Traders' Bank of Jersey City t>. Dakin . . Meriam v. Rundlett Met. Board of Excise v. Barrie Michaud v. Girod .... Miller v. McCarr . . Mills . City of Brooklyn . Moakley v. Riggs . Molton v. Camroux . . Moody v. Mayor .... Moore . Cross .... v. Gardner .... Morris v. Ward .... Mott v. Palmer .... Mumford v. Withey Munford v. Overseers Murfey v. Brace .... Hurray*. H. R. R. R Co. PAGK. 1 Hill, 545 . . 40 15 Johns. 405 . . 139 1 Wheaton, 355 . 436 6 How. 481 . . 235 15 Wend. 64 . . 358 50 N. Y. 509 . . 514 Nat. Bank Reg. Sup. 48 . 161 Not yet reported . 459 62 N. Y. 224 . . 514 58 Barb. 174 . 535 41 How. 350 . . 548 89 N. Y. 19 . . 325 50 N. Y. 505 . . 458 47 N. Y. 556 . . 535 60 N. Y. 16 . . 514 4 Hun, 311 . . 36 56 N. Y. 257 . . 33 22 Wend. 600. . 579 66 N. Y. 261 . . 99 11 Paige, 257 . . 627 2 Lans. 21 . 610 1 Otto, 496 . . 519 2 Comst. 165 . . 391 Court of App. Apr. 1873 . 576 2 Hun, 263 . . 40 Ct. of App. not reported 474 46 N. Y. 194 . 593 1 Bradf. 64 . 470 27 N. Y. 256 . . 595 1 Hun, 35 441 1 Seld. 136 . . 568 34 Barb. 410 . . 470 55 N. Y. 29 . . 164 51 N. Y. 519 . . 432 13 Pick. 511 . . 882 34 N. Y. 657 . . 113 4 How. S. C. 608 . 209 7 Paige, 451 . . 405 32 N. Y. 496 . . 590 19 Johns. 72 . . 229 2Exch. 487; 4 id., 17 . 331 43 Barb. 282 . . 301 19 N. Y. 227 . . 240 6 How. Pr. 248 . 236 86 N. Y. 587 . . 270 1 Comst. 564 . . 543 1 Wend. 279 . . 282 2 Rand. 313 . . 876 28 Barb. 561 . . 638 47 Barb. 196; 48 N. T. 666, a . 289 Z1IV TABLE OF CASES CITED. MMb Murray r. Burling . Miuier 0. Trumpbour Mygatt 9. Washburn N. Naah 9. Brown Nathan e. Giles . Nat Bank of Fishkill t. Speight Nellia c. N. Y. Central R R. Co. . Nesbitt c. Barridge Nilea o. Lindsley . Nicoll 9. N. Y. and Erie R R Co. Nodine e. Doherty . . . Norwood v. Guerdon Noyes . Blakeman 9. Smith , . . N. Y. and Erie R R Co. t>. Purdy N. Y. and Harlem R R Co. t>. Hawa N. T. 8. Marine Ins. Co. . Protection Ins. Co. .... O. O'Brien . McCann O'Gara t>. Eisenlohr Olcott 0. Robinson . Osborn t>. Phelps Osterhout 9. Shoemaker Ousten . Hebden . Owen v. Cawley 10 Johns. 172 5 Wend. 274 15 N. Y. 816 6 Man. G. & S. 584 6 Taunt 558 . 47 N. Y. 668 . ' SON. Y. 505 . 10 Jurist (N. 8.), 58 1 Duer, 610 . 12 N. Y. 128 . 46 Barb. 59 . 60 111. 253 . 2Seld.667 . 28 Vt. 59 ; 18 Barb. 574 . 56 N. Y. 175, 181 [ 1 Story, 458 . 58 N. Y. 373, 376 . 88 N. Y. 296 . . 21 N. Y. 150 . . 19 Conn. 63, 89 . 8 Hill, 516 . . 1 Wilson Rep. 101 . 86 N. Y. 600; 27 id. 35 . 512 .250 .302 . 581 . 879 .282 .423 .18 . 399 .5 . 257 . 87 851, 404 .877 376 71 45 423 329 824 473 Parish . Stone Parker . City of Syracuse Parkes . Brinkerhoff Parks v. Morris Ax Co. Patterson v. Perry . v. Wallace Peabody t>. Roberts Peach 9. Lemon Peck 9. N. Y. C. and H. R R R Co. Penfield e. Rich . Perm v. Remsen People 9. Allen 9. Assessors of Albany * 9. Att'y GenL 9. Briggs . 9. Commissioners . 9. Com. Council of Rochester 9. Fuller . f ^ . Gates 14 Pick. 198,209 '.. .512 81 N. Y. 379 . . . 247 2 Hill, 663 - . . 239 54 N. Y. 586 . . 452 14 How. 505 . . . 505 28 Eng. L. and E. 48 . 258 47 Barb. 92 . . 377 1 Lans. 295 . . . 68 4 Hun, 236 . . .287 1 Wend. 380 . . .172 24 How. 503 . . . 632 5 Den., 76 . . .804 2 Hun, 583 . . . 539 22 Barb. 114 . . .335 50 N. Y. 558 . . . 492 4 Wall. 244 . . .539 50 N. Y. 525 . . .492 40 How. 87 . . .858 13 Wend. 317 . 305 TABLE OF CASES CITED. XXV Peoples. Gay . . Hayes . . . . v. Hynds . .. O'Brien .... v. Sup. of Allegany D. Sup. of Chenango 1>. Sup. of Queens . . Taylor .... 1>. Tweed .... v. White . v. Williams . ?*+>;: . People ex rel. Agnew . Mayor . A. and 8. R. R. Co. . Mitchell ..... People ex rel. Buckley v. Benton . Cooke v. Com. of Highways Corwin v. Walter . Davis . Hill Dolan . Lane Thatcher v. N. Y. Com, Asso. Tompkins v. Landreth Perkins . Perkins v. Squires . Perrin . N. Y. Cent. R. R. Co. . Peterson D. Knoble Petrie v. Petrie Petty 0. Harnum .... Phillpots v. Evans . Picard v. Collins . / Pickering v. De Rochemont Plasket v. Beeby .... Platt v. Beebe .... Porter v. N. Y. Cent R. R. Co. . Potter v. Merchants' Bank Prentiss . Graves .... Preston v. City of Boston . . Pugsley v. Aikin . 7N. Y. 878 . 7 How. 248 . 80 N. Y. 472 . 17 Wend. 81 . 28 Wend. 861 41 N. Y. 123, 189 16 N. Y. 58 . 6 Hun, 42 -: 29 N. Y. 418 . 88 N. Y. 193 . 15 Wend. 198. 4 Seld. 317 . 1 Hill, 195, 199 3 Deuio, 91 . PAS* . 664 . 234 . 567 . 679 . 358 . 492 . 469 . 677 . 648 . 491 . 57 . 98 . 278 , 88 13 Abb. (N. S.) 419 . 284, 236 59 Barb. 666 . . . 610 3N. Y. S. C. (T. AC.) 889 . 99 2 Hill, 13 . .57 35 N. Y. 551 . . .99 29 N. Y. 524 . . 486, 490 57 N. Y. 550 . . . 357 4 N. Y. S. C. (T. & C.) 688 . 57 1 N. Y. S. C. (T. & C.) 154 . 57 55 N. Y. 217 . . .442 18 Abb. Pr. 271 . 220, 221 4 N. Y. S. C. (T. & C.) 184 . 57 62 Barb. 531 . . 316 1 N. Y. 8. C. (T. & 0.) 620 . 223 36 N. Y. 120 . . . 477 35 Wis. 80 . . . 820 7Lans. 90 . . .198 2 Humph. 102 . . 612 5 M. & W. 475 . . 203 23 Barb. 444 . . .891 45 N. H. 78 . . . 199 4 East, 485 . . . 851 57 N. Y. 339 . . . 512 84 Barb. 358 . . 581 28 N. Y. 641 . . 812, 651 38 Barb. 621 . . . 173 12 Pick. 7 . . .416 1 Kern. 497 , 54 Q. Quin v. Mayor Quinn n Mayor 44 How. 266 63 Barb. 595 493 482 Ramsey . Gould . . . Ransom v. Nichols , HUN VOT "VTH 67 Barb. 398 22 N. Y. 110 . 64 470, 610 XXTi TABLE OF CASKS CITED. Raphael . Bank of England Raquin r. Knickerbocker Stage Co. Rathbone . Ho.mey c. Warren Raw son c. Peun. R, R Co. RedUch e. Doll Reedr. Underbill . > Ref . etc. Church . Brown Reg. r. Beard . '' . . r Parish '.' - .' v. Pelham . . * Reqna v. City of Rochester Rex c. Forbes . . v. Price '. '*\ ' Ricard t. Sanderson . Richards z. Waring > . Richtmyer v. Richtmyer . Riddle v. Varnum Ripleyr. McClure . Roberts v. Cooper Robbins v. City of Chicago Robinson v. Swift . R White Lead Co. v. City of Rochester Roe . Tranmer Rogers v. Smith Rood t>. N. Y. and Erie R R Co. . Rounds e. D. L. and W. R R Co. Row r. Sherwood . Royce v. Burt ;,' Rubens t. Prindle . Russell v. Carriugton - 9. The Mayor Ryan . Fowler . Ward 8. Safford v. Wyckoff Sanford . Mayor . Savage t>. Allen Schneider v. Hosier Schuchardt v. Mayor Schultz v. Schultz . Scott . Campbell . Seaman v. Luce Seely t>. Birdsall . Sentance v. Poole . Sergeson t>. Sealey . Seymour v. Judd . v. Wyckoff MM, ( 17 C. B. 161;88Eng.L.andE. \ 276 . . . 310 12 Abb. Pr. 834 . . 130 58 N. Y. 468 . . - 33 10 Johns. 587 . .405 48 N. Y. 212 . . 316 54 N. Y. 284 . . . 144 12 Barb. 118 . . . 568 24 How. 76 . . .646 8 C. & P. 143 . . 624 8C. &P. 94 . . . 624 4 N. Y. Leg. Oba. 899 . 304 45 N. Y. 180 . . 894, 427 7 C. & P. 224 . . 624 6 East, 323, 327 . . 367 41 N. Y. 179 . . . 118 1 Keyes, 576 . ... 240 50 Barb. 55 . .. . 54 20 Pick. 280 . . 264 4Exch. 345 . . . 203 20 How. (U. 8.) 480 . . 430 4 Wall. 657 . - . - . 571 3 Vt. 283 . . 3oO 3 N. Y. 464 . . 366. 593 2 Smith's Lead. Cases (7th Am. ed.), 461, n. . . 423 5 Hun, 475 . . . ft9 18 Barb. 80 . . .601 2 N. Y. W. Dig. 260 . . 387 6 Johns. 109 . . . 2>1 42 Barb. 655 . . . 40:3 44 Barb. 836 . . . 374 43 N. Y. 119 . . 346, 269 3 Den. 414 . . 40 24 N. Y. 410 . . . 257 48N..Y. 204 . .447 4 Hill, 442 . . .347 83 Barb. 147 . . . 415 54 N. Y. 458 . . "404 21 Ohio, 98 . . .320 53 N. Y. 202 . . . 406 85 1ST. Y. 658 . . . 108 80 Ala. 729 . . . 199 23 Barb. 240 . . . 292 15 Johns. 268 . . 234 8 C. & P. 1 . . .833 3 Atk. 412 . . . 829 2 N. Y. 464 . . .16 10 N. Y. 213 . . 254 TABLE OF CASES CITED. ZXVll Shackelton v. Hart . . ';/. Shank . Shoemaker , Sheldon. Wright . Shellington 0. Howland Sheldon 0. Hudson R. R. R. Co. Sherred 0. Cisco Shipley v. Fifty Associates Silsbury v. McCoon Simpson v. Clarke . Skrine 0. Sloop Hope Slocum v. Hooker . ^ Smith v. Allen v. Compton . v. Mason . . . 0. Mayor . . . v. Slade 0. Smith . . v. Townsend Sorchan 0. City of Brooklyn Spooner 0. Brooklyn R. R. Co. State v. Colerick v. Qoold State ex rel. Henshall v. Luddington State of Michigan v. Phoenix Bank Steamboat Orleans v. Phoebus Stephen v. Smith . Stephens v. Van Buren . . Stevens 0. Corn Ex. Bank . Stoddard v. Kimball v. Hart Stokes 0. Saltonstall Storrs 0. City of Utica Stoughton 0. Porter . . Stow 0. Tiff t Strelly 0. Winson Sturges 0. Spofford Sullivan 0. Mayor . Sunderland 0. Loder Susquehanna Bank 0. Sup. of Broome Suydam 0. Bartle . . . Sweet 0. Bartlett 0. Tuttle Bwords 0. Edgar . 0. Owen 12 Abb. Pr. 325, n. . . 138 18 N. Y. 489 . ,' .' . 138 5N. Y. 497 .'.' '.' . 45 53 N. Y. 375 . . . 164 29 Barb. 227; 4 Kern. 224 . 600 4 Sandf . S. C. 480 . . 243 101 Mass. 251; 106 id. 194 . 390 3 Cow. 379, 390 . . 399 2 Cromp. M. & R. 343 . 512 Bee's Adm. Rep. 2 . .324 13 Barb. 536 . . . 354 I Lans. 101 . . . 307 ( 3 Barn. & Adol. 407; 23 Eng. \ Com. 106 . . . 377 14 Wall. 419 . . . 161 37 N. Y. 518 . . . 442 57 Barb. 641 . . . 292 4 Rand. 95 . . 325 25 N. Y. 479 . . . 223 6 K Y. S. C. (T. & 0.) 816 . 99 54 N. Y. 230 . . . 498 3 Hammond, 487 . . 376 53 Maine, 279 . 580, 582 33 Wis. 107 . . . 320 33 N. Y. 9 . . . 351 II Pet. 181 . . . S24 29 Verm. 160 . . . 580 1 Paige, 479 . . . 352 3 Hun, 147 . . . 512 6 Cush. 469 . . . 512 23 N. Y. 556 . . . 606 13 Peters, 181 . . 394 17 K Y. 104 . . . 574 13 Allen, 191 . . . 576 15 Johns. 468 . . 423 1 Ver. 297 . . . 824 58 K Y. 103 . . . 524 53 N. Y. 652 . . . 492 5 Wend. 59 . . . 632 25 K Y. 812 . . . 57 9 Paige, 294 . . . 875 4 Sandf. 661 . . . 139 14 N. Y. 465 . . . 402 59 N. Y. 28 . . . 391 43 How. 176 . . 346 Terry 0. Wait 0. Wheeler . Terwilliger 0. Knapp Thayer r>. City of Boston 56 N. Y. 91 . 25 N. Y. 522 . 2 E. D. Smith, 86 19 Pick. 511 482, 484 . 246 . 202 UVU1 TABLE OF CASES CITED. TheBolfet The Binghamton Bridge . The International etc. t. Bwflfttland The Tigress . . Thomas 0. Winchester Thompson r. Laing Thorp Keokuk Coal Co. Thrasher t>. Bentley Tliurber c. Blanck . Timon t>. Clafly . Tinuey r. Stebbins Town of Guilford . Cooley Town of Lewis . Marshall Townsend t>. Goewey t>. Townsend Train . Gold Tripp v. Riley Trotter r. Hughes . Trubee t>. Alden . Truscott v. King . Truly e. Wanzer . . . Tunno v. The Betsino Twinam t>. Swart Fyler . Strong Otter . Gifford u. 7 Wall 634 . . -885 8 WalL 51 . . 896 14 Abb. Pr. 240 . - 236 Brown. & Lush. 48 . 260 6 N. Y. 897 . .268 8 Bos. 482 . . .202 48 N. Y. 268 . . 118 69 N. Y. 649 . . . 519 60 N. Y. 80 . . .432 45 Barb. 488 . . .108 28 Barb. 290 . .325 68 N. Y. 121 . . . 154 66 N. Y. 668 . . 154 19 Wend. 424 . .198 2 Sandf. Sup. Ct. 711 . 317 6 Pick. 380 . . . 876 16 Barb. 334 . .325 12 N. Y. 74 . . .80 6 Hun, 75 . .382 6 N. Y. 147 . . .605 6 How. (U. 8.) 141 . . 351 5 Am. Law Reg. 406 . .324 4 Lans. 263 . .292 21 Barb. 200 . .264 25 How. 297 . Vallett . Parker . Van Allen r. The Assessors Van Alstyne e. McCarty . Van Bramer v. Cooper Vandenburgh t>. Truax . . v. Hull Vanderheyden t. Young Van Deusen . Sweet Van Kleeck e. LeRoy Van Rensselaer r>. Aikin . Venning t). Leckie Village of Deposit . Vail . Village of Gloversville v. Howell . Voorhis v. Voorhis Waggoner . Jermaine Wakeman . Gowdy Walsh v. Kelly Ward . Cent. Park etc. R R Co. Warner c. Erie Railway Co. w. 6 Wend. 615 . . 347 8 Wall. 573 . . 539 51 Barb. 326 . . .571 2 Johns. 279 . . .354 4 Den. 464 .. 258 20 Wend. 78 . . 655 11 Johns. 150 . . 366 51 N. Y. 378, 386 . .329 37 Barb. 544 . . .638 44 N. Y. 136 . . . 647 18 East, 7 . . .199 12 8. C. N. Y. 310 . . 318 7 Hun, 345 . . . 819 50 Barb. 119; 39 N Y. 468 .108 3 Denio, 306 . 10 Bosw. 208, 218 40 N. Y. 556 . 42 How. 289 . 39 N. Y. 468 . . 391 . 328 894, 427 . 498 . 367 TABLE OF CASES CITED. XXlA Washington Bridge Co. . Stewart Washington Cemetery v. P. P. and C. R. R Co. Watson's Case Watson's Rep. t>. Riley's Adm, W eaver . Devendorf Weir v. Groat Welch v. Hazelton . Welch v. Sage Whalen v. Gloucester Wheeler v. Brady . . City of Chicago v. Raymond . Whichcote v. Lawrence White V, Brownell ... Whitmore t>. Mayor Whitney c. Whitney Whitridge v. Barry . Wiffen . Roberts . Wilcox . Hawley . Willetts . Ridgway . Williams v. Hutchinson v. Jackman . v. People , . Willis v. Long Island R. R. Co. . Wilson v. Mayor Winans v. Peebles . . . Winstead Bank v. Webb . Witbeck v. Waine Woburn v. Henshaw Wood v. Hollister . . Morehouse . Woodruff v. Cook . Wright 0. Crapsey . . . r>. Miller v. Wright . Wrisleys v. Kenyon Wyman v. Parnsworth . . MM 8 How. (U. 8.) 413 . .486 ? Hun, 655 ,. . . 81 2 E. D. Smith, 439 . .439 2 Harris & GUI, 305 . . 169 3 Denio, 119 . . .366 4 Hun, 193 . . . 807 14 How. Pr. 97 . . 232 47 N. Y. 143 . . . 310 4 Hun, 24 . . .891 2 Hun, 347 . . . 437 24111.105 . . .536 8 Cow. 311 . . . 383 Cited in 22 K Y. 327 . 206 4 Abb. Pr. (N. S.) 192 . 220 5 Hun, 195 . . 486, 498 49 Barb. 319 . . . 316 42 Md. 140 . . .400 1 Esp. 261 . . . 612 31 N. Y. 655 . . . 292 9 Ind. 367 . . . 535 3 Comst. 312 . . . 89 16 Gray (82 Mass.), 517 . 245 24 N. Y. 405 . . .480 34 N. Y. 670 . . . 498 1 Denio, 595 . . 366, 590 82 N. Y. 423 . . . 317 39 N. Y. 330 . . . 561 16 N. Y. 532 . . . 299 101 Mass. 193 . 576 3 Abb. Pr. 16 n. . . 236 45 N. Y. 368 . . .45 47 Barb. 304 . . . 273 1 Penn. 112 . . . 199 1 Sandf. Ch. 103 . . 352 54 N. Y. 437 . . 317 28 Verm. 5 . . .350 3 Barb. 369 . . 415 Yale v. Dederer Yates v. Lansing Youngs v. Lee Young v. Stevens 18 N. Y.265; 22 id. 460 474 5 Johns. 282; 9 id. 396 . 866 18 Barb. 192, 193; 2 Kern. 551 512 48 N. H. 138 . .831 STATUTES CITED. New York Constitution, article? . MM. 98 REVISED STATUTES. PA8B. VoL 1, 116, 5 485,487 VoL 2, 96, 75 470 867 . 644 97, 79 383, 95 . 487 236, 57 232 898, 17 . 589 892, 3, 10 . 456 619, 89 . 857 473, 92, 98 154 574, 57 . 857 602, 66 295 729, 56 . 568 728, 5a 306 VoL 8, 75, 29 . 470 pt. 2, chap. 6, tit. 1, 42, 88, 84, 88 . 801 68,67 . 108 REVISED STATUTES (2d ed.): VoL 8(m.p.),187, 1 * 20 REVISED STATUTES (5th ed.): VoL 1,879 490,491 Vol. 3, 779, 1.3 584 VoL 8,240, 80 . 400 781, 15 534 739, 98 . 536 REVISED STATUTES (6th ed.): VoL 1, 845, 65, 66, 67, 68 . 278 1 VoL 8, 116, 55 611 REVISED STATUTES (Edmonds' ed.). VoL 1, 96 . 485 VoL 2, 81, chap. 5, tit 1, art 6 438 98, 15 . 485 199, 153 375 107, 8 . 483 710, 11 303 SESSION LAWS: 1805, Chap. 89 . . 293 1857, Chap. 228 . 581 1882, 224 . . 8 1857, " 409 . 485 1847, " 495 . . 276 1858, " 338, 5 416 1850, " 102, 18 . 86 1859, " 134 . l 290 1850, " 140, 18 . 85 1860, " 90, 1 . 306 1850, " 150 . . 611 1860, " 160 . 580 1851, " 176, 5 . 178 1860, " 348, 3 518 1851, " 441, 8 . 485 1860, " 509 . 481 1864, " 282 . . 86 1860, " 510 . 248 1854, " 402, 6,7,10 . 641 1861, " 240 . 481 1856, " 164 . . 298 1862, " 63, 41 33 1855, " 511, 4 . 885 1862, " 172, 7 87 SECTIONS OF THE CODE CITED. XJCXl FA6B. MOb 1869, Chap. 462 . . 481 1870, Chap. 652 . 88 1862, " 478 . . 20 1871, " 461, tit. 11, 19 59 1863, " 108 . . 481 1871, 461, chap. 1, tit. 8, 1864, " 404 . . 481 14, sub. 5 58 1865, " 605 . 481 1871, " 583 481, 488, 487, 492 1866, 8 . . 485 1871, " 695 94 1866, " 647 '., . 93 1871, " 721, 22, 28, 40 619 1866, " 784 . . 485 1871, " 839 . 37 1866, " 761 . . 539 1872, " 468, 97 278 1866, " 887 . . 481 1872, " 580, 5 226 1867, " 834 . . 371 1872, " 580, 7 . 458 1867, " 697 . . 479 1872, " 587 . 485 1867, " 884, 1 . 871 1873, " 757, 16 371 1867, " 782 . . 470 1873, " 330 . 318 1867, " 806 . . 481 1873, " 335, 25, 26, 27, 28, 1867, " 958 . . 340 29,90,91,112 248 1868, " 82 . . 341 1873, ' 335, 28 447 1868, " 817 . . 340 1873, " 335, 97 494 1868, " 818 . . 44 1873, " 489, 1,6,10 145,146, 613 1868, " 854 . 481, 485 1878, " 835, 86 . 371 1869, " 97, 8 . 284 1873, " 335, 96 371 1869, " 855 . . 94 1873, " 646, . . 17, 149 1869, " 875 . 481 1873, " 646, 1 129 1870, " 175 . 60, 578 1873, " 820 . . 284, 318 1870, " 190 . . 481 1874, " 387 . 38 1870, " 382 . 481, 487, 489 1874, " 444 . 318 1870, " 888 . . 490 1874, " 600 . 518 1870, 410, 1,8, . . 411 1876, " 442 . 509 SECTIONS OF THE CODE CITED. ft 81 . . 282 274 . 67, 404 69 . . 84 275 . 6? 88,84,85 . 268, 269 287 67 118 . . 154 806 . 885, 524 118 . 200 341 . 527 118, 119 . 54 348 . 389 119 . . 64 849, sub. 2 ... 389 122 . . 404 352, 855 ... 15 124 284,238 860 . 822 126, nab. 8 . 285 891 465 144, 147, 148 . . 578 892 456 149, 150 . 282 899 . . 188, 177 158, 168-81 . . 282 417, 418 ... 457 195, 198 . 527 449 . 885 264 . . 889 452 . 278 * 285 389, 629 Rule 36 ... 581 DETERMINED IN THE SECOND DEPARTMENT AT GE^EEAL TEEM, gtttt*, 1876. FRANKLIN G. TAYLOR, APPELLANT, v. JONATHAN EARLE, IMPLEADED WITH THE BURLINGTON COTTON MILLS AND OTHERS, RESPONDENTS. Corporation Sale of the entire property of one corporation, for stock of another Mights of stockholders Acts of majority of, do not bind minority. A corporation, organized under the laws of the State of New York, has no power to transfer all its property and thus terminate its existence, and take in payment stock in a foreign corporation carrying on the same business.* Under the laws of this State, the majority of the stockholders of a corporation cannot bind the non-consenting minority to a sale of its entire property, made for the purpose and merely as a form of turning a New York company into a Vermont one, so as to escape the scrutiny into its affairs permitted to a stockholder by the New York laws. A stockholder, under the New York law, becomes such under the security thereof and when this is taken from him has the right to have the property of his cor poration applied to the payment of its debts, and the surplus, if any, dividec among the stockholders. APPEAL from a judgment of the Special Term dismissing plain tiff's complaint. The plaintiff was a stockholder in the Burlington Cotton Mills, A manufacturing corporation organized under the general laws of this State about August 14, 1866, whose principal office and place of business was in the city of New York. The corporation about the * To same effect, see Frothingham v. Barney, 6 Hun, 866. [RHP. TAYLOR u. EARLE. SECOND DEPARTMENT, JUNE TERM, 1876. time of its organization purchased real estate, mills thereon, machinery and water privileges at Burlington, in the State of Ver- mont. About January 9, 1875, at a meeting of the stockholders, it was resolved by the holders of a majority of the stock to sell the property of the corporation to the Burlington Cotton Mills Com pany, a corporation created by the laws of Vermont, and take r. payment thereof 1,747 shares of the stock of the latter company, and the pro^rty of the former was thereafter conveyed to the lat- ter corporation for and in consideration of such stock, and for no other consideration. At the time of the resolution and convey- ance, the defendant Jonathan Earle was president, and the defend- ant George B. Earle treasurer of both corporations, and held a majority of the stock of the Burlington Cotton Mills. The plain- tiff never consented nor assented to the resolution to sell, nor to the acts done under such resolution. For a long time prior to January, 1875, no report had been made to the stockholders of the Burlington Cotton Mills, nor of its finan cial affairs. A demand was made upon the treasurer, George B. Earle, that he furnish such report. After such demand, and before January 9, 1875, the defendants Earle and others of the Vermont 3orporation were a majority of the directors of the New York com- pany. This action was brought by the plaintiff as a stockholder of the Burlington Cotton Mills (the New York corporation), holding 100 out of 1,000 shares of its stock, to set aside the conveyance aforesaid as illegal and void, and for other relief; the Burlington Cotton Mills having refused to bring the action. E. Sprout, for the appellant. Isaac L. Miller^ for the respondents. BARNARD, P. J. : I think the court erred in dismissing the plaintiff's complaint. He was a stockholder in the Burlington Cotton Mills, a Ne;v York corporation. By a vote of a large majority of the stockholders (not including plaintiff), this corporation sold all its property, real and personal, except cash in hand, mills and franchises, to the Burlington Cotton Mill Company, a Vermont corporation, and took in payment 1,747 shares of this Vermont corporation. TAYLOR v. EARLE. 3 SECOND DEPARTMENT, JUNE TERM, 1876. The Burlington Cotton Mills, on plaintiff's request, refuse to bring this action, and it is well settled that in such a case a stock- holder may assert his own rights, making the corporation a defendant. I think it quite clear that plaintiff had a right to relief. Either the transfer was void as ultra vires, or the property received in some way was liable to the debts of the Burlington Cotton Mills, and after their payment to distribution among those of the stockholders who did not wish to take a proportion of stock in the Vermont company. The plaintiff cannot be forced to take the stock of the Burling- ton Cotton Mill Company without his own consent. The facts are all averred in his complaint, and he is entitled to any relief war- ranted by the facts, and not alone to that for which he has asked. I am of opinion, however, that the whole scheme of the transfer and its execution was illegal. There is no power given by the acts under which the Burlington Cotton Mills were incorporated to transfer all the property of a cor- poration, and then terminate its existence, and take in payment stock in a company carrying on the same business, with a different name, charter and stockholders, and being a, foreign corporation. The corporation, by the New York law, could increase or diminish its stock, or extend its business to other objects, but that falls far short, I think, of the sweeping power exercised on this occasion. The sale was not real. It was a mere form to turn a New York corporation into a Vermont one, and thus escape the scrutiny into the affairs of the company permitted by the New York law to the stockholders. No majority can bind the non-consenting minority to this. He became a stockholder under the security of the New York law, and, when that is taken from him, at least he should have the prop- erty of his corporation applied to the payment of its debts, and the surplus, if any, divided among the stockholders. I think the judgment should be reversed, and a new trial granted, costs to abide event. GILBBBT, J., concurred ; DYKMAN, J., not sitting. Judgment reversed, and new trial granted, costs to abide event STANTON u. KING. SECOND DEPARTMENT, JUNE TERM, 1876. PHILIP V. R. STANTON, RESPONDENT, v. ELIZABETH R. B. KING, FMPLEADED WITH JOHN LEVERIDGE AND ANOTHIB, EXECUTORS AND TRUSTEES. Tnttt estate service* rendered to claim for, not a UenCettui qtw tnut n* necetsary party to action to enforce. A party is not liable for any portion of a claim for services rendered to a trust estate, by reason of his subsequent receipt of a portion of such trust estate under the provisions of the will creating it, and is not a necessary party to an action against the trustees of such estate to recover a balance of a claim for such services. In what case a trustee may make a claim for services rendered to an estate a liem upon the trust estate, considered. APPEAL from an order made at a Special Term overruling a demurrer to a complaint. The demurrer was interposed by the defendant Elizabeth R. B. King, on the grounds of defect of parties, pendency of another action, misjoinder of parties and causes of action, and that the complaint did not state facts suffi- cient to constitute a cause of action. The action was brought to recover for legal professional services rendered to, and moneys expended for an estate. The trustees under the will and the cestm que trusty Elizabeth R. B. King, to whom a portion of the estate had been paid over, were made defendants ; no personal claim was made against either of the defendants, but only on the property in their hands, derived from the estate for which the services were ren- dered. James C. Kays, for the appellant, Elizabeth R. B. King. P. S. Crooke, for the respondent. BARNARD, P. J. : It is not important to consider the question whether the trusteei under the will of Gilbert W. Bowne could charge the estate with the claim of plaintiff for professional services rendered the estate. As I read the averments of the complaint, they have not done BO. The averment is " that it was understood by said defendants STANTON v. KING. SECOND DEPARTMENT, JUNE TERM, 1876. John Leveridge and Hermance B. Duryea, trustees as aforesaid, and this plaintiff, that the said services were rendered and money paid * * * was to be paid for by them as such trustees out of said estate." This is a precise statement of their legal duty as trustees. The trustees may use the funds of the estate for legal purposes. They cannot bind the estate by any executory contract. (Austin v. Munro, 47 K Y., 360; Ferrin v. Myrick, 41 N. Y., 315.) There is no cause of action set forth against the defendant King. She is not a necessary party to an action against the trustees to recover a balance of a claim for services rendered, nor is she indi- vidually liable to plaintiff for any portion of the plaintiff's claim by reason of her receipt of property under the will of the deceased, Gilbert W. Bowne. In the case of Noyes v. Blakeman (2 Seld., 567), there were no funds in the hands of the trustees to resist an act-ion which threat- ened the destruction of the trust estate. In such an exceptional case the Court of Appeals held that the trustees could establish a lien on the trust estate. Here there is no such claim made. The services rendered were in the management of the estate, and it does not appear but that the trustees had always sufficient funds belonging to the estate, with which to pay plaintiff for his services. Indeed, the contrary appears, that the trustees had abundant means in hand down to the time the estate was transferred to the cestui que trust under the will. I think the order appealed from should be reversed and the demurrer sustained, with leave to plaintiff to amend in twenty days on payment of costs. GILBERT, J., concurred ; DTKMAN, J., not sitting. Order overruling demurrer reversed with costs and demurrer sustained with costs CAMPBELL v. SMITH. SECOND DEPARTMENT, JUNE TERM, 1876. JOSEPH W. CAMPBELL, APPELLANT, v. JAMES K. SMITH, RESPONDENT. Deed assuming mortgage covenant enures to benefit of mortgagee Distinction between such covenant when made by grantee and mortgagee. H. and wife executed a mortgage, which was duly assigned to C. Afterward H. and wife sold the premises to B., and executed a deed therefor without the name of any grantee, but with a blank space left for the insertion thereof. The deed coctained full covenants of title, and a clause subsequent to the "habeudum," in the following words (alter enumerating certain other mortgages): " Subject to the payment of another certain indenture of mortgage now upon the within described premises, amounting to $3,000" (meaning the mortgage in ques- tion), " which said mortgage the said party of the second part hereby agrees to assume, pay off and discharge, the same having been allowed out of the con- sideration or purchase money hereinbefore expressed." B. was indebted to a firm of which defendant 8. was a member, and afterward agreed with S., by parol, that he should insert the name of S. as grantee it: the deed; that S. should take the title, and that the profits therefrom should be applied on account of the said indebtedness of B. to the defendant's firm. B. accordingly inserted the defendant's name in the deed and had the same recorded, with his knowledge and assent. Afterward B. procured a purchaser for the premises, and contracted in his own name for the sale thereof, and S., in pursuance thereof aud at the request of B., granted and conveyed the premises to such purchaser, in fee simple, by deed, with the usual full covenants, including covenant of seizin, subject to the said mortgage and other incumbrances; and this deed contained a clause similar to the other, providing for the assumption and payment of said mortgage by such purchaser. The mortgage was foreclosed, S. not being made a party, although his grantee was; but no judgment for deficiency was demanded against him. C. purchased in the premises on the sale, and brought his action against S. on the covenants in the deed from H. to S., to recover the deficiency on such sale. Held, that 8., as regarded H., was the absolute owner in fee of the premises, and bound to pay the consideration agreed upon for the purchase; that the rights of the parties were not to be determined by the facts existing at the execution of the blank deed, but by those existing when S. consented to take the deed with a covenant to pay the plaintiffs mortgage; that the defendant, by the deed, took the property of H. and agreed to pay its purchase-price to the plaintiff. Lawrence v. Fox (20 N. Y., 268) followed; Garnsey v. Rogers (47 N. Y., 23c> distinguished. APPEAL from a judgment entered in favor of the defendant, on the decision by the court, a jury trial having been waived. On the 29rh of April, 1871, Maria C. Hood and John M. Hood CAMPBELL v. SMITH. SECOND DEPARTMENT, JUNE TERM, 1876. her husband, duly executed, acknowledged and delivered to Edwin E. Dillingham a bond and mortgage on the separate property of said Maria C. Hood, who was the owner thereof in fee simple, which bond and mortgage were duly assigned to the plaintiff September 16, 1871, and such assignment recorded October 20th, 1871, on which there is due and unpaid $3,000 and interest from September 3d, 1874. A short time prior to June 25th, 1872, said Maria C. Hood and John M. Hood agreed with one N. "W. Burtis to sell to him the said premises, subject to the incumbrances upon it, for $2,000, in the notes of said Burtis, and that said mortgage, then a lien thereon, together with other incumbrances, should be assumed. The said Maria C. and John M. Hood, on the 25th day of June, 1872, duly executed, acknowledged and delivered to said Burtis a deed of said premises, without the name of any grantee (i. e., party of the second part thereto) therein, but with a blank space left for the insertion thereof; said deed then contained full covenants for title and a clause, subsequent to the " hdbendum" in the following words (after enumerating certain other mortgages): "Subject to the payment of another certain indenture of mortgage, now upon the within described premises, amounting to $3,000" (meaning the mortgage in question), " which said mortgage the said party of the second part hereto agrees to assume, pay off and discharge, the game having been allowed out of the consideration or purchase money hereinbefore expressed." Burtis then paid the grantors in said deed $2,000 in his, Burtis', notes, and they, by parol, authorized said Burtis to fill into the blank left therefor in said deed the name of any person he chos as grantee, and to deliver the same to such grantee. Burtis was then indebted to a firm, of which the defendant wat a member, and shortly thereafter agreed with said defendant, by parol, that he, said Burtis, should insert the defendant's name as grantee in the said deed, and that the defendant should take the title, and that the profits therefrom should be applied on account of the said indebtedness to the defendant's firm ; and thereupon said Burtifl, in pursuance of his said authority and said agreement, inserted the name of the defendant as grantee in said deed, and had the same recorded with the knowledge and aasont of said defendant^ 8 CAMPBELL v. SMITH. SECOND DEPARTMENT, JUNE TERM, 1876. Thereafter said Burtis procured a purchaser for said property and in his own name contracted for the sale thereof, and the defendant, in pursuance thereof and at the request of said Burtis, granted and conveyed the same to such purchaser in fee simple, by deed, with the usual full covenants, including covenant of seizin, subject to the said mortgage and other incumbrances ; and the deed contained a clause, similar to that quoted above, providing for the assumption and payment of said mortgage by such purchaser. The plaintiff subsequently foreclosed said mortgage without making said defendant a party thereto, and the amount above found due is the amount due thereon after deducting the amount realized thereon from the sale under the judgment in said action. The grantee of the defendant was made a party to said action, but no judgment for deficiency was demanded or taken against him. The plaintiff purchased the premises at the foreclosure sale, and upon the trial of this case offered, upon being made whole, to convey the same to the defendant. R. <& 6. Ingraham, for the appellant. D. P. Barnard, for the respondent. BABNARD, P. J. : I do not think this case falls within the principle established in Garnsey v. Rogers (47 N. T., 233). In that case no title passed to the defendant. The deed in which his covenant to pay incum- brances was contained, was, as between the parties to it, a mort- gage only. The court held that a covenant by a mortgagee with the mortgagor to pay a prior mortgage was a promise for the benefit of the mortgagor only, and could not be made the basis of an action by the prior mortgagee. In this case Burtis agreed with the Hoods to pay a prior mortgage (the one held by plaintiff) as part of the purchase money. They had signed the bond and mortgage, and were personally liable upon it. They gave Burtis an absolute deed in blank, with leave to fill in the name of any grantee. He filled in defendant's name as grantee with his assent. The defendant as against the Hoods became the absolute owner in fee of the lands. As to them he is bound to pay the considera MURDOCK v. WARD. SECOND DEPARTMENT, JUNE TERM, 1876. tion agreed upon for the purchase. The rights of the parties are not to be determined by the facts existing at the execution of the blank deed, but by those existing when defendant consented to take the deed with a covenant to pay the plaintiff's mortgage. By that deed defendant took Hood's property and agreed to pay its purchase- price to plaintiff. The case thus comes, I think, within the prinoi pie of Lawrence v. Fox (20 N. Y., 268). I think there should be a new trial, costs to abide event GILBERT, J., concurred. Present BARNARD, P. J., GILBERT and DYKMAN, JJ. Judgment reversed and new trial granted, costs to abide event. WILLIAM C. MURDOCK, EXECUTOR, ETC., v. HARRIET ISABEL WARD AND ISABEL GODFREY WARD. Win providing for EQUAL division among next of kin, as in ease of intestacy con- struction of as to rights of widow and child. A. testator empowered his executors to pay to his sons, after their arrival at the age of twenty-one years, the whole or part of their portion of his estate as they should deem prudent. The will also provided, " and in case the whole of said principal shall not be paid to them or either of them during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among, and paid to the persons entitled thereto, as their or eithei of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intes tate." A son of the testator died before he had received his share, there being some $67,000 thereof in the hands of the executor at the date of his death, leaving a widow and one child, an infant. Seld, that the words " equally divided " among the persons entitled thereto, were restricted by the last part of the clause " and as if the same were personal property, and they or either of them had died intestate." The direction was to distribute the property equally in the manner provided by law, as in case of intestacy, but as the law does not distribute equally between a widow and child, no other mode of distribution but the one established by statute as tc personal property hi case of intestacy was furnished, and it should be followed and the widow take one-third and the child two-thirds. HUN VOL. VIII 2 10 MURDOCK v. WARD. SECOND DEPARTMENT, JUNE TERM, 1876. APPEAL by Isabel Godfrey Ward, an infant, from a judgment entered on the decision of the Special Term, allowing to the widow, Harriet Isabel Ward, one-half of a fund not paid over to her deceased father under the will of her grandfather, James O. Ward. This action was brought by the plaintiff as executor and trustee under the will of James O. Ward for a construction of the fourth clause thereof, viz. : " Fourthly. To pay the rest, residue and remain- der of my estate to all my children in equal shares as follows, that is to say : To my sons at such time or times after they shall severally arrive at the age of twenty-one years as my said executors shall deem prudent and advisable ; and in case my said executors shall not deem it prudent or advisable to pay to my said sons, or either of them, their shares as they shall severally arrive at the age of twenty-one years, then to pay to them, or either of them, the income thereof, or such part or portion of the principal as they shall from time to time deem prudent aud best ; and in case the whole of said principal should not be paid to them, or either of them, during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among and paid to the persons entitled thereto, as their or either of their next or kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate." It appears from the findings of fact that Charles F. Ward, a son of James O. Ward, died August 23, 1875, and that at that time said plaintiff, as executor and trustee, had in his hands about the sum of $67,000, which was the residue of the share of said son, Charles F., not paid over to him in his lifetime ; that said son left him surviving the defendants, his widow Harriet Isabel Ward and his infant daughter Isabel Godfrey Ward, aged about eighteen months. The court on the trial found, as a conclusion of law, that the defendants, the widow and child, were each entitled to one-half of said fund, and directed judgment accordingly. Judgment was, on the 17th of April, 1876, entered in accordance with said find- ings. From that judgment the infant defendant, Isabel Godfrey Ward, through C. D. Newman, Esq., her guardian ad MURDOCH u. WARD. 1J SECOND DEPARTMENT, JUNE TERM, 1876. appealed to this court. Exceptions were filed to the conclusions of law only. Clement D. Newman, for the infant appellant, Isabel Godfrey Ward. I. Next of kin used simpliciter does not include the widow. To sustain the decision of the court below it must clearly appear from the context or other parts of will that the words next of kin were used with other import than their strict legal defini- tion. This fund must be "equally divided * * * accord- ing to the laws of New York." The testator had in mind persons who take equally by and according to law, not a widow, who, according to law, takes one-third. If there were no widow the daughter would take the whole as next of kin. This is clear. Suppose there were no daughter would the widow take the whole ? If the testator meant to include widow in the words next of kin, the widow as devisee in remainder would have just as clear a right as the child to the whole. The persons the testator had in mind as next of kin are clearly shown by the contingent remainder clause, viz. : " In case either of rny children should die with- out issue him or her surviving, I then order and direct that his or her share be paid to the surviving brothers and sisters." Here must come in another forced construction. " Without issue " in this will ought to mean without widow and children, and we must imagine the testator's idea to have been : " If any son of mine leaves issue their mother or step-mother is his next of kin. Ii he leave no issue she is not next of kin. Perhaps I do and per haps I don't designate her as a devisee. If the son leaves a child she shall have half its inheritance." II. Next of kin used simplicitei means kindred or relation by blood. (Slosson v. Lynch, 28 How., 417.) " A bequest by husband or wife to next of kin does not include the wife or husband, and the same rule applies to bequest under a power, and where a will provides that next of kin shall take, as in cases of intestacy." (Redtield on Wills, vol. 2, p. 77 ; Watt v. Watt, 3 Ves., 244.) Widow does not take where hus- band's will directs his personal estate " to be divided among his next of kin, as if he had died intestate." (Garrick v. Camden, 14 Ves., 372.) Where a will reads " to next of kin according to the statutes for the distribution of personal estates of persons dying MUKDOCK v. WARD. SECOND DEPARTMENT, JUNE TERM, 1876. intestate," the widow does not take. (Cholmondely v. Ashburton, 6 Beav., 86 ; Withy v. Mangles, 4 id., 358.) The English statute is the same as ours. The act of 1849 (p. 387) gave certain damages to the wile and next of kin of deceased person, and a husband suing for death of wife was held not to be next of kin. (See Dickens v. N. Y. C. R. E. Co., 23 N. Y., 158.) Milton A. Fowler, for the respondent, Harriet Isabel Ward. I. The term next of kin has not an inflexible meaning, but is con- strued according to the circumstances under which it is used, and so as to best carry out the intention of the person using it. Under the statute which provides that a creditor of a deceased party who may have neglected to present his claim to the executor or adminis- trator may recover the same of the next of kin of the deceased, to whom any assets may have been paid or distributed, it has been held that such recovery may be had of the widow as next of kin. (The Merchants' Ins. Co. v. Hinman, 15 How. Pr. Rep., 182.) Again, it has been held that the husband succeeds to the wife's personal estate as her next of kin, although he is not strictly such. (Fittiplace v. Georges, 1 Ves. Jr., 4648 ; Schuyler v. Hoyle, 5 J. Ch., 196-206 ; 2 Kent Com., p. 136.) The court, MILLER, J., giv- ing the opinion in the case of Knickerbacker v. Seymour, says : " I think it must be conceded that the expression ' next of kin ' may be employed in a deed or will conveying or bequeathing property, so as to authorize a construction which will include the wife or widow." (Knickerlacker v. Seymour, 46 Barb., 198-205.) II. What- ever doubt there may be as to whether a bequest to the next of kin of a party includes his wife, such doubt is entirely removed by the words used in this will : " To the persons entitled thereto as their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate." This clause of the will explains next of kin, as meaning such persons as would take as distributees, under the laws of the State, in cases of intestacy. 1. No laws of the State can be referred to except the statutes as to the distribution of per- sonal property, found in 2 Rev. Stat., at p. 96, 75. 2. If a strict and liberal meaning is attempted to be given to the words "next of kin " in that statute, such an would exclude the MURDOCK v. WARD. 13 SECOND DEPARTMENT, JUNE TERM, 1876. child as well as the widow, for the distribution is "to the widow, children, or next of kin, in manner following." No one would say that such would be a fair construction of the words, nor can it be argued any more fairly that the wife is excluded. 3. The widow is a distributee under the statutes of this State, and as such is one of the persons referred to in the clause of the will above quoted. (2 Redfield on Wills, p. 400, 47, sub. 14.) In a case having a trust similar to this, the words of after-distribution, being " to the heirs at law and next of kin of said party of the first part in the manner and proportions prescribed by the statutes of descent and distribution of this State, in case of persons who die intestate," the court says : " The expression ' in cases of persons who die intestate ' qualifies the previous language so as to indicate that it was intended to embrace the widow within the words employed." (Knicker- lacker v Seymour, 46 Barb., 198-207.) BABNAJSD, P. J. : James C. Ward, by his will, empowered his executors to pay to his sons, after their arrival at the age of twenty-one years, the whole or part of their portion of his estate as they should deem prudent. Charles F. Ward, a son of testator, died before he had received his share, there being about $67,000 thereof in the execu- tors' hands at the date of his death. He left a widow and one child, an infant. The will provided for distribution in case of death of the son as follows : " And in case the whole of said principal shall not be paid to them, or either of them, during their lives, then the said princi- pal, or such part or portion thereof as may remain unpaid, to be equally divided among and paid to the persons entitled thereto, as their or either of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate." The clause above given suggests three constructions : 1. That the widow and child take equally. 2. That the widow is not next of kin, and the child takes all. 3. That the widow takes one-third and the child two-thirds, as if the son had owned the property and had died intestate. I think the last the true construction of the clause in question 14 KUNTfc v. LIGHT. SECOND DEPARTMENT, JUNE TERM, 1876. The words "equally divided" among the persons entitled thereto are restricted by the last part of the clause, " and as if the same were personal property, and they or either of them had died intestate." In other words, the direction is to distribute the property equally in the manner provided by law as in case of intestacy. The law does not distribute equally between a widow and child. No other mode of distribution but the one established by statute as to per- sonal property in case of intestacy is furnished, and that should be followed. Decree modified accordingly. GILBERT, J., concurred. DYKMAN, J., not sitting. Judgment modified by giving widow one-third and child two- thirds of fund. JOHN G. KUNTZ, APPELLANT, v. FREDERICK LIGHT, RESPONDENT. Appeal to County Court wTien security on, jurisdictional Code, % 852-355 chap. 392 of 1868 appealable order. On appeal from a Justice's Court, before the act of 1863 (chap. 392,) security was only required when a stay of execution was desired; since that act, where, by the terms of section 352, the appellant is entitled to a new trial, security ifl required to perfect such appeal, and give jurisdiction thereon to the County Court A refusal to dismiss such appeal when security has not been filed affects a sub- stantial right, and the order refusing it is appealable. Seymour v. Judd (2 N. Y., 464) followed. APPEAL from an order of the County Court of Queens county, refusing to dismiss an appeal thereto from a Justice's Court. The action was tried in a Justice's Court of Newtown, Queens Bounty, on the 22d of October, 1875, and judgment rendered in favor of the plaintiff for the sum of fifty-two dollars and sixty-two cents damages, and four dollars costs. The defendant thereupon served a notice of appeal for a new trial in the County Conrt, as a matter of right, the plaintiff having claimed KUNTZ v. LIGHT. 15 SECOND DEPARTMENT, JUNE TERM, 1876. more than fifty dollars in his complaint. The defendant did not, al the time he served his notice of appeal, nor at any subsequent time, give an undertaking on appeal, as is required in the case of a new trial by the Code ( 355). The plaintiff presented the affidavit of WILLIAM E. SLOCUM, Esq., the justice before whom the cause was tried, and the certificate of the county clerk, proving that no undertaking had been served or iiled, and moved to dismiss the appeal. The motion was heard before Hon. JOHN J. ARMSTRONG, county judge of Queens county, on the 1st day of February, 1876, and was denied, with costs, and an order entered to that effect, from which order the plaintiff appealed to the General Term. John E. Van Nostrand, for the appellant D. L. Norton, for the respondent. BARNARD, P. J. : The question presented arises under section 355 of the Code, which reads as follows : " "When, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, and in all other cases, if he desires a stay of execution of the judgment, give security, as provided in the next section." The judgment exceeded fifty dollars exclusive of costs, and by the terms of section 352 a new trial resulted, as matter of right, in the appellate court. I think the county judge erred in his con- struction of the section in question. The clause giving a new trial in cases where the pleadings demanded a judgment upon a claim oi over fifty dollar? was passed in 1863. The statute in reference to security upon appeals from Justices' Courts before that required such security only in case a stay of exe- cution was desired. When the legislature passed the provision giving a new trial npon appeals where the amount demanded was over fifty dollars, there was added the provision that on such appeals " and in all other cases if he desires a stay of execution," the appellant should give security. BEUTHOLF v. O'REILLY. SECOND DEPARTMENT, JUNE TERM, 1876. If there was to be no security given upon such appeals there was no necessity for the added clause. The old requirement as to secu- rity was sufficient. No security was needed except when a stay of execution was desired. The order is appealable. If security was required to perfect the appeal the County Court obtained no jurisdiction without it The refusal to dismiss the appeal affected a substantial right and the order refusing it is appealable. (Seymour v. Judd, 2 N. Y., 464.) Order reversed with costs and appeal dismissed, with costs. GILBERT, J., concurred. Present BARNARD, P. J., GILBERT and DYKMAN, JJ. Order of County Court reversed, with ten dollars costs and dis- bursements, and motion granted to dismiss the appeal. SAMUEL BERTHOLF, RESPONDENT, v. JAMES O'REILLY AKD HERMAN FIRNHABER, APPELLANTS. Oivtt damage act chap. 646 of 1873 action under constitutional as to owner of premises Contributory negligence Intoxication occurring while violating Sunday law, no defense 2 Rev. Stat. (Qth ed.), 928, 84. R. was the owner and F. the keeper of a place where intoxicating liquors were sold without a license. The son of the plaintiff, on a Sunday, took plaintiff 's horse, saying he was going to see a friend about four miles distant, but instead went directly to the place of P., and became intoxicated there, and, when in such a state, drove the horse so violently that he died. This action was brought, under chapter 646 of the Laws of 1873, to recover the value of the horse. Held, that the action could be maintained against R, the landlord, jointly with P., the tenant. That the plaintiff's allowing his son to take his horse to drive to a neighbor's, knowing the son to be of intemperate habits, was not such contributory negli gence as to defeat his right of action. Fhat the question of contributory negligence was not applicable to the case. rhat the sending of the horse on Sunday did not deprive the plaintiff of h right to sue lor his property unlawfully destroyed. BEKTHOLF v. O'REILLY. 17 SECOND DEPARTMENT, JUNE TEBM, 1876. APPEAL from an order denying a motion for a new trial, made upon the minutes of the judge at the Circuit. The action was brought under chapter 64:6, Laws of 1873, to recover damages alleged to have been sustained by the plaintiff, as the owner of a horse of the value of $200, which was taken from his place, in Orange county, in good condition, on a Sunday, by his son, and returned after midnight, so used up that death resulted therefrom. The son became intoxicated from liquor obtained of the defendant Firnhaber, the keeper of a restaurant, of which the defendant O'Reilly was the landlord, and in this condition drove the horse so furiously as to cause the injury complained of. The son, who was known to be of intemperate habits, borrowed the horse to go to a neighbor's, but instead went to Firnhaber's. Lewis E. Carr, for the appellants. W. J. Gross, for the respondent. BARNARD, P. J. : This is an action for damages under chapter 646 of Laws of 1873. It is brought against the owner of premises leased for the purpose of selling intoxicating liquors, and against the tenant who hired the premises for that purpose. The sale in question was made to plaintiffs son, who, by reason of the intoxication produced thereby, did " drive, worry, and maltreat " plaintiff's horse causing his death. The evidence is sufficient to sustain the verdict as to the fact of selling, and as to the consequent intoxication and its results. It was conflicting, but the jury have found the facts to have been as alleged in plaintiff's complaint. As to the tenant, the act has been held constitutional. (Baker v. Pope, 5 N. Y. S. 0., 102.) The act in question gives the action against the owner ot the premises where the sale is made, severally or jointly with the person selling, where the owners have knowledge that intoxicating liquors are to be sold thereon. In this case the owner leased the premises for the purpose of selling lager beer and ale. He knew that the tenant was selling intoxicating liquors after he took possession. The tenant swears that the owner agreed, as part of the lease, to obtain a license for HUN VOL. VIII. 3 18 BERTHOLF v. O'REILLY. SECOND DEPARTMENT, JUNE TERM, 1876, him. In fact no license was obtained. I can discover no reason why the act is invalid as to the owner of the premises. The object of the law was to prevent the impoverishment of families by reason of intoxication; to prevent the violence and injury resulting from intoxication by making those who caused the intoxication liable for the damages which resulted to others by reason thereof. The tenant may sell, but he must be careful to whom he sells, and never to sell enough to cause intoxication, or to add to an intoxication which has been commenced by sales of strong drink by others. The land- lord must see that he rents his premises, if he rents them for the purpose of selling intoxicating drinks, to persons who will so sell that no person shall be injured in person, property or means of support by reason of his sales. The legislature required the owner, who alone has the power to lease and select his tenant, to assume the risk of his tenant's acts in the business of selling spirituous liquors when such tenant caused injury by his sales. If the legisla- ture can legislate against the tenant, ita power to reach the land- lord cannot be doubted in the cases mentioned in the act referred to. I do not think the principle of contributory negligence applica- ble to this action. The plaintiff's son was made intoxicated by defendants, and ran his father's horse to death. The action was not for negligently killing the horse ; if it were, sending his son with the horse to go and see a neighbor, knowing that his son fre- quently got drunk, would not bring the case within that principle because his son did get drunk on the occasion. The sending the horse on Sunday does not deprive the plaintiff of his right to sue for his property unlawfully destroyed. (Nodine v. Doherty, 46 Barb., 59.) The judgment should be affirmed with costs. GILBERT, J., concurred. DYKMAN, J., not sitting. Judgment and order denying new trial affirmed with costs. TISDALE v. MOORE. 19 SECOND DEPARTMENT, JUNE TEKM, 1876. JAMES TISDALE, APPELLANT, v. MATILDA MOORE, BENJAMIN F. MOORE, JOSEPH G. MOORE, BEN- JAMIN F. MOORE, JR., AND OTHERS, RESPONDENTS. Demurrer Miyoinder of causes of action what is not. In an action to foreclose a mechanic's lien, although other persons than the one against whom the claim was filed as owner of the premises are made parties defendant, on the ground that conveyances by and to them, of the premises, -were fraudulently made to defeat plaintiff's claim, and the complaint asks to have such conveyances declared void, yet there is only one cause of action set forth in the complaint and the same is not demurrable. Even if the prayer for judgment upon the facts alleged be for too much, it is not ground for demurrer. APPEAL from a judgment and order sustaining a demurrer to a complaint, on the ground of a misjoinder of two causes of action. The complaint sets forth that the plaintiff performed labor and furnished materials for certain houses on the land of the defendant Matilda Moore, and that he filed and served on the 16th Novem- oer, 1875, the notice required under chapter 478 of the Laws of 1862, under and by which he acquired a lien thereon. It further alleges, that on the loth November, 1875, the defendant Matilda Moore and her husband executed and delivered to the defendant Joseph G. Moore a paper purporting to be a deed of said premises ; md on the same day Joseph G. Moore executed a paper, purport- ing to be a mortgage, to the defendant Benjamin F. Moore, and also another to Matilda Moore. That the said instruments were designed to defeat plaintiff's lien ; were without consideration and fraudulent, and asks to have such instruments declared void ; that there be an accounting and settlement between plaintiff and defend- ant Matilda Moore of the amount due him, and that a sale of the interest of the defendant Matilda Moore be directed and the pro- ceeds applied to the payment of the claim of the plaintiff, with Ms costs, and for such other relief as to the court may seem just. To this there was put in a demurrer, that two separate and distinct causes of action had been improperly united in the complaint. Frank E. JSlackwell, for the appellant. Justus Palmer, for the respondents. TISDALE v. MOORE. SECOND DEPARTMENT, JUNE TERM, 1876. BARNARD, P. J. : I think the complaint sets forth but a single cause of action. The plaintiff avers that he performed labor and furnished mate- rials to repair three houses on the land of Matilda Moore. That he tiled and served the notice required under chapter 478 of the Laws of 1862, on the 16th of November, 1875, under and by which he acquired a lien upon the premises described in the com- plaint. The complaint further avers that Matilda Moore, on that day, was the owner of the premises. The complaint further avers that on the 15th of November, 1875, the defendant Matilda Moore, and her husband, executed and delivered a paper, purporting to be a deed, to one Joseph G. Moore, and on the same day Joseph G. Moore executed a paper, purporting to be a mortgage thereon, to Benjamin F. Moore. Also on the same day he executed a pretended mortgage thereon to Matilda Moore. That both deed and mortgages were designed by the parties to them to defeat plaintiff's lien ; that they were fraudulent, without any consideration and void. Under these averments, by our statute, the pretended papers were, and are, void as against the plaintiff. (2 R. S. [2d ed., m. p.], 137, 1.) The cause of action is simply that plaintiff has a lien as of the 16th of November, 1875, and he asks its enforcement under the act above referred to. The plaintiff has inserted in his complaint only " such other matters and allegations as maybe material and proper to establish the claim and cause of action of the claimant and plain- tiff," as he was authorized to do by section 3 of chapter 478, Laws of 1862. Unless the plaintiff can maintain his complaint the lien law is useless. By giving a fraudulent and void deed the owner may pre- vent a claimant from enforcing a lien. The lienor must prove ownership at the date of filing his notice. He cannot do that with- out proof to destroy the deed. To do that so as to effectually free the land from its operation he must have the grantees of the void papers as parties. KNICKERBOCKER LIFE INS. CO. v. NELSON. 21 SECOND DEPARTMENT, JUNE TERM, 1876. If the prayer for judgment upon the facts alleged is for too much, it is not a ground of demurrer. Order sustaining demurrer overruled, with costs, and demurrer overruled, with costs, with leave to defendants to answer in twenty days on payment of costs. GILBERT, J., concurred. DYKMAN, J., not sitting. Order sustaining demurrer reversed, with costs, and demurrer overruled with costs. THE KNICKERBOCKER LIFE INSURANCE COMPAQ iT, RESPONDENT, v. GEORGE W. NELSON AND RUEA NELSON, IMPLEADED WITH OTHERS, APPELLANTS. Mortgage foreclosure Usury Guaranty Fraud trial of issues of, by the court, discretionary. In an action for the foreclosure of four bonds and mortgages executed by the defendant George W. Nelson ; for a sale of the mortgaged premises and judg- ment for deficiency against him, and for a judgment against the defendant Ruea Nelson for any deficiency up to $20,000, on the ground of the execution by him of an instrument, by which he covenanted that on a sale under foreclosure of said mortgages, the mortgaged premises should yield a sum sufficient to pay the amount decreed, with the costs and expenses of sale, or in default thereof he would, on demand, pay any deficiency up to $20,000 which might result on such sale or sales, the defendant George W. Nelson set up usury as a defense, and the defendant Ruea Nelson also plead usury, and that the aforesaid instru- ment executed by him was procured to be so executed by fraud. Held, that it was an equitable action purely, and it rested in the discretion of the court either to ask the aid of a jury to inform the conscience of the court, or to decide the case without such aid; that the defendant could not claim, as matter of right, to have the issues framed and tried at law. APPEAL from an order made at a Special Term denying a motion by the defendants Nelson to settle the issues to be tried by a jury. The action was brought for the foreclosure of four bonds and mort- gages, amounting to $70,000, executed by George W. Nelson and wife to the plaintiff. The defendant George W. Nelson plead usury, and the defendant Ruea Nelson also plead usury, and that a certain 22 KNICKERBOCKER LIFE INS. CO. t>. NELSON. SECOND DEPARTMENT, J UNE TERM, 1876. instrument executed by him, under seal, wherein he covenanted to pay any deficiency up to $20,000 that might arise on the sale or sales under foreclosure of said mortgages, would be paid by him on demand, was obtained by fraud, setting forth in his answer, at length, the facts in relation thereto. A motion was made by the defendants Xelson on the pleadings, and questions of fact proposed to be sub- mitted by them to a jury for trial, for an order settling the issues between them and the plaintiff for trial by jury, which motion was denied, and the defendants Nelson appeal from the order of denial to this court. Morris do Pearsall, for the appellants Nelson. I. The complaint asks a judgment for money only against the defendant Ruea Nelson ; there is no claim against him for equit- able relief; it is purely a legal demand, and as to the issues between him and the plaintiff, he is entitled to a trial by jury as a matter of strict right. (Code of Pro., 253 ; 2 R. S., 409, 4 ; Const, of N. Y., art. 1, 2 ; Davis v. Morns, 36 N. Y., 569 ; Wynehamer v. People, 13 id., 426 ; Greason v. Keteltas, 17 id., 498 ; Bradley v. Aldrich, 40 id., 510; Lattin v. McCarty,l id., 110, 112, and note ; Hudson v. Caryl, 44 N". Y., 555 ; Penn. Coal Co. v. DeL Hud. Co., 1 Keyes, 72, 76.) II. The plaintiff cannot, by stating in its complaint facts entitling it to equitable relief as to some defendants, and purely legal relief as to this defendant, deprive him of his constitutional right of a trial by jury. (Davis v. Morris, 36 N. Y., 569; Code of Pro., 253; Lattin v. McCarty, 41 id., 112 and note; Bradley v. Alflrich, 40 N. Y., 510 ; Hudson v. Caryl, 44 id., 555 ; Penn. Coal Co. v. Del. and Hud. Canal Co., I Keyes, 72, 76.) III. The court may, in its discretion, in equity actions, order the .vhole issue, or any specific questions of fact, to be tried by a jury. ( Code of Procedure, 254 ; Fanners and Mechanics' Bank v. Jodin, 37 N". Y., 353 ; Supreme Court Rule, 40.) IV. An issue of fraud ought to be tried by a jury. (Freeman i-. Atlantic Insurance Co., 13 Abb., 124; Levy v. Brooklyn Fin Insurance Co., 25 Wend., 687.) Henry W. Johnson, for the respondents. DREW v. ANDREWS. 2'3 SECOND DEPARTMENT, JTTNE TERM, 1876. BARNARD, P. J. : This is purely an equitable action. The complaint is for the foreclosure of certain mortgages accompanied by a demand for judgment for deficiency, if any should result, against the person who executed the bonds. The answer sets up as a defense usury, and that the bonds and mortgages were procured by fraud. It was never a matter of right that issues should be framed and sent to a jury in equitable actions. It always rested in the discretion of the court either to ask the aid of a jury to inform the conscience of the court, or to decide the case without such aid. There is nothing in the present case calling for a reversal of the order at Special Term refusing to frame issues to be tried at law. Whether or not usury is proven to have entered into the contract, or whether or not the mortgages were procured by false and fraud- ulent representations, are questions which equity judges are pecul- iarly fitted to determine by reason of the large experience which they have derived from trials in which such defenses are set up. I consider the finding of an intelligent and impartial court upon questions like these more to be relied on than the verdict of a jury rhereon. Order affirmed, with ten dollars costs and disbursements. GILBERT, J., concurred. DYKMAN, J., not sitting. Order affirmed with costs and disbursements. THOMAS DREW, RESPONDENT, v. ALFRED ANDREWS, APPELLANT. Trial by Jury Refusal to restate evidence, when requested by jury Pleadings not evidence to go to the jury. >n the trial of an action for work and labor done and materials furnished by the ;i!aintiff for the defendant, after the jury had retired they requested of the rourt information as to what a witness for defendant had testified to, in refer ence to a portion of the work claimed for. Held, error for the court to refuse the request of the counsel for the defendant, made in the presence of plaintiff a counsel, to bring in the jury and state the evidence to them as requested f 4 DREW v. ANDREWS. SECOND DEPARTMENT, JUNE TERM, 1876. When the jury had returned into court, and stated that they had found for the plaintiff but fixed no amount, held, error for the court to direct the jury to take the pleadings and return again and fix the amount The pleadings were not evidence even, beyond the portion thereof admitted in the answer. APPEAL from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order refusing a new trial on the minutes. This action was brought in the City Court of Yonkers by Thomas Drew, plaintiff, against Alfred Andrews, defendant, to recover a balance of $382.60 alleged to be due from the defendant to the plaintiff for work, labor and services performed in the building of i foundation wall and a stone retaining wall and walls thereto, trenching for said retaining wall and extra work on the grounds of defendant, in the city of Yonkers, and in the grading of said grounds. The said retaining wall and walls thereto were built and said grading and trenching done, under a written contrac' between the parties to this action. After the jury had been out about two hours they requested of the court information as to what a witness for defendant had testified in reference to a portion of the work claimed for; the counsel for the defendant, in the presence of plaintiff's counsel, asked the court to bring in the jury and state the evidence to them as requested, which the court refused to do. A short time after the jury returned into court, said they had agreed and found for the plaintiff, fixing no amount. Upon being told they must find a specific amount they stated they were unable to do so, not having the measurements. The court thereupon directed the jury to take the pleadings and return again and fix the amount. The jury found for the plaintiff in the exact amount claimed, and in the exact language used in the complaint. John D. Comstock, for the appellant. Ralph E. Prime, for the respondent. BAENAED, P. J. : I think there should be a new trial granted. The action was f< work and labor done by plaintiff for defendant ^ad f'ji materials furnished. There were five separate causes of V. CITY OF BROOKLYN. 37 SECOND DEPARTMENT, JUNE TERM, 1876. THE NEW YORK AND BROOKLYN SAW-MILL AND LUMBER COMPANY, APPELLANT, v. THE CITY OF BROOKLYN, RESPONDENT. Duties imposed on municipal officers when not in the interest or prescribed by tho charter of the municipality corporation not liable for failure or refusal of itt officers to perform. A municipal corporation is not liable in damages to a private party, for the failure or refusal of any of its officers to perform a duty, not pertaining to the interests or franchises of the corporation, nor arising under the charter thereof, but imposed upon such officers by a special act of the legislature, in relation to an improvement instituted by the State for the private benefit of a locality, and not for that of the people of the city at large. Such a duty is not imposed upon the corporation, nor are such officers called upon to act in their corporate capacity. For the purposes of such an act they become the public and administrative officers or agents of the State, and they act or refuse to act for the State and the locality to be benefited, and not' for the city. APPEAL from an order made at a Special Term sustaining a demurrer to a complaint, that it did not state facts sufficient to con- stitute a cause of action. The plaintiff is the owner of lands adjacent to the Gowanus canal, in the city of Brooklyn, which canal is a short inlet of Gowa- mis bay lying in a oul de sac, and fronted upon either side by pri- vate property, except where it is crossed by the numerous streets of said city. It is not a source of any public revenue, nor is it a highway for any purpose other than those of the private dock holders upon its sides. In 1866 an act (chap. 678, Laws of 1866), was passed for the improvement of that canal. By that act the commissioners named in it were directed to cause docks to be built on the sides of the canal, and the canal itself to be deepened^ Tho expense of this work was to be met, in the first instance, by the issue of the bonds of the city, and the city to be reimbursed by an assessment upon the adjacent private property which it benefited. In pursuance of this act, docks were erected by the commissioners on plaintiff's land. From defective construction these docks sunk In 1871 another act (chap. 839) was passed directing an assess- 38 SAW-MILL CO. v. CITY OF BROOKLYN. SECOND DEPARTMENT, JUNE TERM, 1876. ment to be levied for this work, and also directing the common council to cause the sunken docks to be rebuilt at the expense of the city. The second and third sections of the act are as follows : The common council of the city of Brooklyn are hereby author- ized and directed to cause to be repaired or rebuilt, at the expense of said city, the docks on the sides of the Gowanus canal, con- structed by the said commissioners, where the same have sunk or become unfit for use. The amount necessary to rebuild such docks shall be raised by the issue of certificates of indebtedness, and there shall be levied and collected, in the same manner as other taxes in the city of Brooklyn are, and be paid in, in the year one thousand eight hundred and seventy-two, such sum as may be neces sary to pay the said certificates of indebtedness, and such sum, when collected, shall be applied to the payment of said certificates. The plaintiffs repeatedly demanded that defendant should rebuild the docks on plaintiff's land, in accordance with the provisions oi the last named act. The defendant and its common council failed and refused to build the docks, and the plaintiff sued for damages on account of such failure. A demurrer was interposed to the complaint therein that the complaint did not state facts sufficient to constitute a cause of action, and the same appeared on the face thereof. An order was made sustaining the demurrer, from which plaintiff appealed. Edgar M. Cullen, for the appellant. Win. C. De Witt, for the respondents. GILBERT, J. : The liability of a municipal corporation to a person who has sustained damages by reason of a negligent omission 01 the cor poration to perform a ministerial duty imposed by law upon it, cannot be doubted. But we think the duty of repairing the docks of the Go wan us canal was not imposed on the city of Brooklyn, but on the common council of that city. Such is the language oi the statute. (Laws 1871, chap. 839.) That is an independent statute and forms no part of the general distribution of powers or duties among the different branches of the city government. Noi SAW-MILL CO. v. CITY OF BROOKLYN. 39 SECOND DEPARTMENT, JUNE TERM, 1876. b it averred that the corporation has, in any way, assumed the performance of the duty thereby imposed. The name of the cor- poration when that statute was passed was, and still is, " The City of Brooklyn." If the legislature had intended to impose the duty upon the corporation they would have used the corporate name The common council are, it is true, the agents of the corporation. They may, nevertheless, be charged by the legislature with the performance of public duties for the benefit of the people of the State which do not pertain exclusively to the affairs of the corpora- tion ; and in such a case they should be treated as agents of the State and not of the corporation. As a corporation can act only through agents duly elected or appointed, pursuant to the Consti- tution and the act of incorporation, the legislature may prescribe the powers and duties of such agents and the corporation will be Hable for their acts and omissions unless exempted from such lia- bility by statute. Although their authority emanates directly from the legislature they are agents of the corporation. They represent the corporation, and powers and duties with which they may be clothed by the act of incorporation are, in judgment of law, cor- porate powers and duties. That is the principle of the case of Conrad v. Trustees of Ithaca, referred to in 16 New York, 158, and other kindred cases. In the case before us, however, the repairing of the docks in question was not a duty imposed on the corporation by the charter thereof, nor was it enumerated among those thereby imposed upon any of its agents. It originated in the act of 1871. Commissioners who had previously been intrusted by the legislature with the building of the docks were superseded by that act, and the common council were appointed in their place to repair the same docks which had sunk. That work was directed to be done merely to perfect the improvement undertaken by the commissioners. That improvement was strictly a local one for the benefit of adjoining proprietors. A construction of a statute which imposes on the defendant such a liability as is claimed in this case ought to be very palpable before it is adopted. We think the most reasonable con struction is that the duty and consequent liability were imposed on the common council, as commissioners only, and not as agents of the corporation. Upon principle therefore as well as upon the 40 MERR1TT v. VILLAGE OF PORTCHESTER. SECOND DEPARTMENT, JUNE TERM, 1876. authority of the cases cited below we think the corporation is not liable for their acts or omissions in respect to the duty so imposed. (Lorillard v. Tvwn of Monroe, 11 N. Y., 392, and cases cited therein ; Russell v. The Mayor, 2 Den., 464: ; Martin v. Brooklyn, 1 Hill, 545 ; King v. Same, 42 Barb., 627 ; see, also, Dillon on Mun. Cor., 772-778 ; Maasmilian v. The Mayor, 2 Hun, 263.) The order appealed from should therefore be affirmed, with costs. BARNARD, P. J., concurred. Present BARNARD, P. J., GILBERT and DYKMAN, JJ. Order sustaining demurrer affirmed with costs, with leave to Amend. SARAH MERRITT AND OTHERS, APPELLANTS, v. THE VIL- LAGE OF PORTOHESTER AND JOHN LEONARD, TBEASUBER OF THE VILLAGE OF PORTCHESTER, RESPONDENTS. Assessments one resolution providing for two Bids time of opening Notice publication of objections chapter 818 of 1868 chapter 245 of 1875 regularity of proceedings under. The board of trustees of the village of Portchester acted upon two petitions, one for grading Hanseco and the other for grading Irving avenue. There was but one resolution which, though it embraced both streets, yet, in legal effect, estab- lished separate assessment districts for each, and the subsequent proceedings were conducted thereunder. Held, that the proceedings were not open to the objection that there was only one proceeding for the grading of both streets. A requirement in a charter that bids shall be opened on the day mentioned in the notice or on the adjourned day, and that the trustees shall " then " determine whose is the most favorable, does not restrict them to an instant determination; they have all the time requisite for a correct conclusion, the word " then " being used in the sense of " soon afterward" or " immediately.'" Where a charter requires the trustees to determine upon and fix, but specifies no form in which the trustees are to express then* decision as to the proper com- pensation for work done, a confirmation of the report containing the charges for expenses, counsel fees, etc. , is a sufficient compliance with the provisions of the charter. A statute providing that before completing and signing the report, the commis sioners must publish, once in each week for two weeks successively, a notice of a time and place, when and where the parties interested can be heard, held, to mean that there shall be two publications, one in one week, and the other MERRITT v. VILLAGE OF PORTCHESTER. 41 SECOND DEPARTMENT, JUNE TERM, 1876. in the next week, and not that two weeks must elapse between the first publi cation and the day designated for the hearing. Held, further, that a notice requiring the objections to be in writing was invalid, the statute conferring no authority that such hearing shall be restricted to writ ten objections, and that this objection by the plaintiffs would have been fatal to the proceedings had they disregarded the notice. But having appeared before the commissioners pursuant thereto and had the benefit of a hearing the}' thereby waived all defects therein. APPEAL from a judgment entered in favor of the defendants on a decision at Special Term, in an action brought by the plaintiffs for a perpetual injunction restraining the defendants forever from selling, offering for sale or making, issuing or delivering any certifi- cate of sale or lease of plaintiff's land, for unpaid assessments for the grading of a street in the village of Portchester. The village was incorporated under a special act passed in 1868 (chap. 818). Proceedings in relation to regulating and grading streets arid assessments therefor are provided for by sections 22 to 28, inclusive, of title 5 of said act. The provisions of said act as to sales for unpaid assessments were amended by chapter 245 of the Laws of 1875. The court at Special Term found, among other things, that the plaintiffs were the owners of the land described in the complaint, the defendant The Tillage of Portchester a municipal corporation, and the defendant John Leonard the treasurer thereof. That the defendant The Tillage of Portchester instituted proceed- ings, under the charter of said village, for the grading of Hanseco and Irving avenues on separate petitions as to each avenue, and that they fixed in one resolution the assessment districts for both streets in the following language : " The assessment districts to defray the xpense of said grading be so fixed as to include all the land on both sides of said streets (Hanseco and Irving avenues) to a depth not exceeding 100 feet." That Hanseco and Irving avenues are not parts of the same street, but are separate streets running at right angles to each other. That the board of trustees of the defendant caused plain and accurate specifications of the work proposed to be done, uniting in the same specifications the work for both streets but making a dif- ferent plan for each, and deposited the same with the village clerk HUN TOL. Till. 6 42 MERRITT v. VILLAGE OF PORTCHESTER. SECOND DEPARTMENT, JUNE TERM, 1876. for public inspection, and gave two notices, one as to each street, that they would, on the 22d day of September, 1873, act in rela- tion to the work of such streets, and that sealed proposals for the work would be received by the clerk until that date. That the bids or proposals were opened on the 22d day of September, 1873, by the trustees, read and referred to the road committee, and thereupon the trustees' meeting adjourned without any further action to the 24th day of September, 1873, on which day they met, received and adopted the report of the road commit- tee then presented, which report deemed the proposal of Robert F. Brundage the most favorable for grading Hanseco avenue, and recommended that his proposal be accepted, which was the only action determining whose was the most favorable bid. That, thereafter, the proceedings for grading the two avenues were con- ducted separately as to each, and separate contracts made as to each, in neither of which contracts, nor in the proposals, was a gross sum named as the price for doing the work, but the contract provided for doing the work at a sum per yard and per foot ; some of the work to be done by the foot and some by the yard. The commissioners of estimate and assessment severally took, subscribed and filed an oath in writing, "each for himself, that we will support the Constitution of the United States, the Consti- tution of the State of New York, and will perform the duty of commissioner of estimate and assessment for the grading of Hanseco avenue, in the village of Portchester, to the best of his ability ; " and gave notice that the commissioners would meet in said village on November 7th, 1873, from two to five p. M., to receive any written objections that may be offered to and left with them by any of the parties interested ; which notice was not dated and which notice was published once in each week for two weeks successively, commencing on the 30th day of October, 1873. That the plaintiffs, by John Lyon their agent, appeared before the com- missioners and filed with them written objections, which were returned with their report to the board of trustees. The trustees did not confirm the same but sent the report back to the said com- missioners that they might correct and readvertise the same. The commissioners made up a second report and gave notice that all persons feeling themselves aggrieved must present their MERRITT v. VILLAGE OF PORTCHESTER. 43 SECOND DEPARTMENT, JUNE TERM, 1876. objections in writing. Objections in writing were presented to said commissioners signed by five persons, including the three plaintiffs, which objections were annexed to the report and the report was then signed by said commissioners and returned to the board of trustees, who did not confirm the same but sent the same back to said commissioners to be reviewed by them and corrected according to law. The commissioners made up a third report and gave a notice similar to that for the second report. No objections on the part of the plaintiffs were made in writing under such notice, but there were objections by other persons. Said third report was by said commissioners returned to the said board of trustees, who did not confirm the same but sent the same back to the said commissioners. The commissioners made up a fourth report arid before signing the same caused a notice, dated February 25th, 1874, to be pub- lished in the village newspaper : " That the commissioners of estimate and assessment for the grading of Hanseco avenue in the village of Portchester have completed their report and filed the same with the village clerk, in all respects according to law, where the same could be seen and examined by all persons interested until March 6th, 1874. Notice is further given that said commis- sioners will meet at the corporation rooms March 6th, 1874, from one to four p. M., and all persons feeling themselves aggrieved must present their objections in writing to the same ; " which notice was published once in each week for two weeks successively, commenc- ing on 26th of February, 1874. No objections in writing to said fourth report were received or presented to the said commissioners The said fourth report was presented to said board of trustees who on the 9th day of March, 1874, confirmed the same. ND resolution was passed or adopted by said trustees till April 20th, 1874, in terms fixing or auditing any of the items of expense mentioned in said report other than the resolution adopted March 9th, 1874, simply confirming the report. Ralph E. Prime, for the appellants. Amherst Wight, Jr., for the respondents 44 MERRITT u. VILLAGE OF PORTCHESTER. SECOND DEPARTMENT, JOKE TERM, 1876. GILBERT, J. : We have examined the proceedings presented for review in thii case, and have come to the following conclusions : 1. The objection that there was only one proceeding for the grading of both streets is not correct in point of fact. The board of trustees acted upon two petitions, one for Hanseco and the other for Irving avenue. The resolution fixing the assessment districts, though it embraced both streets, yet in legal effect established sepa- rate districts for each of them, and the subsequent proceedings were conducted accordingly. 2. We think the construction of section 23 of title 5 of the char- ter, urged on behalf of the plaintiffs, is too technical. The require- ment that the bids shall be opened on the day mentioned in the notice, or on the adjourned day, and that the trustees shall " then " determine whose is the most favorable, does not restrict them to an instant determination. They must have time, and all the time requisite for a correct conclusion. Hence the word " then," evi- dently, was used in the sense of " soon afterward " or " immedi- ately." Certainly the legislature did not intend that the trustees should act upon the proposals without having duly considered them. 3. The statute does not require that the proposal shall be to do the work for a specified sum, nor could they ordinarily be properly put in that form. The sureties are to become bound for the doing the work at the price and upon the terms proposed. But that does not imply that the bids shall be in one form or the other. We think that either form is a sufficient compliance with the statute. 4. There was no substantial variance in the oath taken by the commissioners of assessment, from that prescribed by the statute. 5. We think the cost of the work was properly ascertained. The trustees acted on the statement of their engineer, and nothing has been shown to impeach the accuracy thereof. The slight discrep- ancy of fifty cents between the first and fourth report cannot be so regarded. 6. The confirmation of the report containing the charges for expenses, counsel fees, etc., was a sufficient compliance with the provision of the charter requiring the trustees td determine upon and fix the compensation for those objects. They could not con- firm the report without approving those charges, and the chartei MERRITT v. VILLAGE OF PORTCHESTER. 45 SECOND DEPARTMENT, JUNE TERM, 1876. specifies no form of expressing their determination of the compen- sation therefor. One mode, therefore, is as good as another, pro- vided it shows an actual determination of the trustees. 7. The notice of hearing upon the report of the assessment was published twice in successive weeks. That seems to be a compli- ance with the peculiar phraseology of the statute, which requires that the notice shall be published once in each week for two weeks successively. This we think means that there shall be two publi- cations one in one week and the other in the next week and not that two weeks must elapse between the first publication and the day designated for the hearing. Such has been the later con- struction of similar statutes (Chamberlain v. Dempsey, 22 How., 356 ; Sheldon v. Wright, 5 K Y., 497 ; Olcott v. Robinson, 21 id., 150 ; Wood v. Morehouse, 45 id., 368), and the language of the statute under consideration rather repels the idea of a notice oi two weeks to the persons interested, by providing that it shall be given to the newspaper and published only twice. The objection to the sufficiency of the notice itself, however, seerns to us to be a good one. The statute requires a notice of the time and place when and where the parties interested can be heard. The commissioners are to complete their report after that time. The plain object of these provisions is to afford an opportunity for a hearing before the commissioners, and the benefit of subsequent action thereupon by them, and the statute confers no authority upon them to require that such hearing shall be restricted to written objections. The subsequent provision that the commissioners shall return their report, " with all the objections in writing," does not warrant the inference that the commissioners themselves could properly hear and consider only written objections. Parties who desired a second consideration of their objections by the trustees might very properly be required to reduce them to writing, while no occasion for the observance of such a form would exist at the first hearing before the commissioners. In either case it would be a hearing within the legal signification of that term, which simply means the receir ing of facts and argument thereon for the sake of deciding cor- rectly. Still statutes, whereby a man's property is taken away or burdened with charges upon it, must be strictly pursued. We think that was not done in this particular, and the omission may 46 HOTCHKISS v. PLATT. SECOND DEPARTMENT, JUNE TERM, 1876. have deterred the persons interested from making an oral statement of their objections, and so deprived them of a substantial right. This objection would have been a fatal one, if the plaintiffs had disregarded the notice. But having appeared before the commis- sioners pursuant thereto, and had the benefit of a hearing, they thereby waived all defects therein. (Buel v. Trustees of Lockport, 3 Comst., 197 ; People v. Quigg, 59 N. Y., 89, and cases cited.) 8. By section 13 of title 7 of the charter, it was made the duty of the trustees to issue the warrant for the collection of the assess- ment. That was done, and the sale was made after the return of the warrant. The objection on this ground, therefore, is unfounded. The result is that the judgment must be affirmed, with costs. BARNARD, P. J., concurred. Present BARNARD, P. J., GILBERT and DYKMAN, JJ. Judgment affirmed, with costs and disbursements. FREDERICK W. HOTCHKISS, APPELLANT, v. JOHN H. PLATT, ASSIGNEE IN BANKRUPTCY OF CLEMENTINA T. RICHARDSON, BANKRUPT, IMPLEADED WITH OTHERS, RESPONDENT. Injunction damages caused by what allowable as Bad management of receiver Counsel fee Injury to business. In proceedings to ascertain the damage resulting from the granting of an injunc- tion, damages directly caused by the act of divesting the enjoined party of his property and putting it in the hands of a receiver are allowable, but not such as flow from the bad management of the receiver afterwards. Counsel fees on the trial of the action in which the injunction was granted are not allowable as damages, without evidence that the expense of the trial was increased by the injunction. 4n allowance made by the court to the receiver in managing the property is not allowable as damages, when the sum so paid is no greater than the defendant, who did not manage the property before the receivership, but employed another person tc do it, would have paid for similar services if no receiver had been appointed. Any loss of property or diminution of profits occurring in consequence of the change in the custody and control of defendant's goods or stoppage of defend ant'fl business is allowable. HOTCHKISS v. PLATT. 47 SECOND DEPARTMENT, UNE TEKM, 1876. APPEAL from an order made at Special Term, confirming th report of a referee appointed to ascertain the damages sustained by the defendant Richardson, by reason of an order of injunction granted in said action. In January, 1871, the plaintiff brought an action against Clem- entina T. Kichardson and others, the said Clementina then carrying jn the business of selling carpets and furniture at the corner of Hudson and Canal streets, New York city, and on the 2d day of February, 1871, an order was obtained in the action appointing a receiver of the property, the order containing an injunction against the said Clementina and others, forbidding them to inter- fere or dispose of their property. This injunction continued until February 1, 1872, when judgment was entered dismissing the com- plaint, which judgment was affirmed at General Term, October 31, 1873, and on the 25th day of January, 1875, a reference was ordered to ascertain the damages sustained by reason of the injunction. The injunction stopped collections and payments and forced Clem- entina T. Richardson into bankruptcy. The undertaking on the injunction was not signed by the plaintiff bat by John Q. Clark and Frederick S. Wells, as obligors, and the receiver filed a sepa- rate bond as such. The referee did not allow damages for the bankruptcy. He allowed : First, $2,400 for part of the expense of the receivership. Second, $350 for counsel fees on the trial of the action. Third, $350 to each of two counsel, or $700 counsel fees on the reference. Fourth, $300 referee's fees. Fifth, $2,882.25, the amount of the assets of said defendant Clem- entina T. Richardson, lost by reason ot the inability of the receiver and his failure to collect the same, and which failure was occasioned by the inability of the defendant to conduct her own business by reason of the injunction therein. Making a total of $6,632.25, from all of which allowances, except- ing the referee's fees, the obligors in the undertaking on the injunction appealed. Thomas H. Hubbard, for the appellant. Austin G. Fox and Waldo Hutchins, for the respondent. 48 HOTCHKISS v. PLATT. SECOND DEPARTMENT, JOKE TERM, 1876. GILBERT, J. I The damages to which a party who has been injured by the grunting of an injunction, is entitled, are only such as have resulted directly from the injunction. (2 Wait's Pr., 124.) Remote damages are excluded by the very terms of the undertaking, which are that the plaintiff will pay to the defendant " such damages as he may sustain by reason of the said injunction," and also by the general rules of law governing the assessment of damages in anal- ogous cases. In this case the injunction is contained in the order appointing the receiver, which is dated February 2d, 1871. No motion to vacate it appears to have been made, but the order mentioned required the defendants to show cause on a day specified therein, why the receivership and the injunction should not be continued. Nothing seems to have been done under this branch of the order. On the 18th of February, 1871, the action was referred, by mutual consent, to a referee, to hear and determine the same. The receiver took possession on the same day he was appointed, viz. : February 2d, 1871, and such receivership continued until the termination of the action. The receivers that were successively appointed gave bonds for the faithful discharge of their duties. It cannot be claimed, we think, that damages, sustained in. consequence of the negligence 01 want of fidelity of the receivers are allowable, for the reason that they are not, in any sense, attributable to the injunction, and the further reason that other security was taken therefor. The damages directly caused by the act of divesting the defendant of her property and putting it in the hands of a receiver may be allowed, but not such as flowed from the bad management of the receivers afterward. Applying these principles, we will now look at the report of the referee in detail. 1. The allowance of part of the counsel fees incurred in the trial of the action, was improper. There is no evidence that the expense of the trial was, in any manner, increased by the injunction, and without snch evidence they were not allowable. (Hovey v. Rubber Tip Co., 12 Abb. [N. S.], 360 ; 8. 0., 50 N. Y., 335 ; Allen v. Broijon, 5 Lans., 514.) 2. The item of $2,400, awarded by the court to the receivei HOTCHKISS v. PLATT. 49 SECOND DEPARTMENT, JUNE TEKM, 1876. Andrews, was, I think, improperly allowed. That expense was incurred for services rendered in the preservation and management of the property, and, as the evidence shows, amounts to a less sum than the defendant would have paid for similar services if no receiver had been appointed. The defendant did not manage the business herself before the receivership, but employed another per- son to do it for her. Payments made to the receiver instead of the defendant's employe, if they did not subject her to increased expense, certainly do not constitute damages caused by the injunc- tion. If such employe had been the receiver no one would con- tend that payments to him for his services in taking care of the property and conducting the business, not in excess of the compen- sation which the defendant had agreed to pay him would be an ele- ment of damages, and we think the employment of another person to do the same service does not warrant the application of a differ- ent rule. If any loss of property or diminution of profits has occurred in consequence of the change in the custody and control of the defendant's goods or effects, or the stoppage of her business, either would form a proper element of damages, but not mere expenses which she must have incurred if no such change had been ordered. 3. The referee has found that a loss of property occurred in con- sequence of the injunction, amounting to $2,882.25. There is evi- dence to support this finding, and we are not disposed to weigh it in nice balances for the purpose of relieving parties who have become liable for the consequences of an illegal interference \rith the property of another. That item, therefore, will be allowed. 4. Only one counsel fee can be allowed for services on the refer- ence to ascertain the damages. A party cannot lay the foundation of a claim for damages by employing a greater number of counsel than was necessary. (Collins v. Sinclair, 51 HI., 328.) The allow ance is too large for one counsel, and nothing appears justifying the inference that more than one was necessary. The order appealed from must be modified so as to reduce the amount allowed for damages to $3,532.25, and as so modified it is affirmed, without costs to either party. BAENAKD, P. J., and DYKMAN, J., concurred. Order modified in accordance with opinion of Justice GILBBBT. HUN VOL. VTTI. 7 50 SKIDMORE v. COLLIER. SECOND DEPARTMENT, JUNE TERM, 1876. FRANCES C. SKIDMORE, ADMINISTRATRIX, RESPONDENT, v. CATHARINE N. COLLIER, ADMINISTRATRIX, IMPLEADED WITH OTHERS, APPELLANT. Partnership accounting Surviving partner Different causes of action Joinder of administrator and heirs. In an action by the administratrix of A. against the administratrix of B. for an accounting in respect to a partnership existing between A., B. and C., alleging that after the death of A. the partnership was continued by B. and C., as sur- viving partners, for a short period, when B. purchased the interest of C. with partnership effects, and thereafter continued the business as sole surviving partner until his death; and that after the death of B., his widow and adminis- tratrix, the defendant (who had since married one Collier) carried on the same business with the partnership capital and effects, and that no accounting of the interests of A. had ever been rendered to the plaintiff, who was his widow and administratrix; that the other defendants were the children of B. and made defendants on the ground of a partial distribution of their father's estate to them; and that some of the real estate which descended to them, as heirs of their father, was in fact purchased with the funds of the partnership aforesaid, and so constituted a part of the assets thereof: on demurrer to the complaint by the defendant Collier, administratrix, interposed on the ground that the facts stated in the first cause of action did not constitute a cause of action against her, and that several causes of action had been improperly united in the complaint: Held, that the facts stated made out a case within the equitable jurisdiction of the court. That a surviving partner, though he has a legal right to the partnership effects, yet, in equity, is considered a trustee to pay the debts and dispose of the effects for the benefit of himself, and the estate of his deceased partner That the capital of the deceased partner is to be treated as trust property; and when it has been employed in carrying on the business of the concern, so much of the subsequent profits as can be attributed to the employment of such capital must be accounted for by those who have used it; and on this principle the defendant Collier was liable, as administratrix, to account for the quasi breach of trust of B., her intestate, and hence a cause of action was correctly stated against her. That there was really but one cause of action set out in the complaint, namely, the right to an accounting concerning the affairs of the partnership mentioned; and no distinct cause of action set forth against the defendants other than Collier, the administratrix; but in such an action it was proper to make all persons parties who were interested in the subject-matter of the accounting, although the interests of the several defendants did not accrue in the same right SKIDMORE v. COLLIER. 51 SECOND DEPABTMENT, JUNE TEHM, 1876. APPEAL from an order made at Special Term, overruling a demurrer to the complaint. The action was brought June 12, 1875, by plaintiff as adminis- tratrix of William D. Skidmore, deceased, against the defendant Collier as administratrix of Henry Skidmore, deceased, together with the next of kin and heirs at law of said Henry Skidmore, alleging a partnership between their respective intestates, and demanding an accounting, etc. The amended complaint alleged that, about 1859, said Henry Skidmore and William D. Skidmore, together with one Frank Bush, formed a partnership for the purpose of printing and bronz- ing tinfoil. This partnership was to continue, so far as Bush was concerned, fourteen years, but, as between the Skidmores, it was to continue indefinitely ; i. e., it was terminable at will, and, of course, by the death of either partner. Each partner was to share equally in the profits, losses and prop- erty of the firm. Bush furnished all the money, and the Skidmores furnished an invention for printing and bronzing tinfoil, a patent for which was to be applied for. This partnership continued until the death of plaintiff's intes- tate, William D. Skidmore, April 11, 1862, at which time his interest in the business was worth about $20,000, and bis interest in the stock, etc., about $3,000. Plaintiff was appointed administratrix of the goods, etc., of William D. Skidmore, on July 2, 1862. After the death of William D. Skidmore, Henry Skidmore con- tinued to carry on the business with the firm assets until his death in 1873 ; although he had, in 1864, with the firm assets, bought out Bush's interest in the firm, after which time all the firm assets became the property of said Henry Skidmore, as surviving partner, " for the benefit of himself and this plaintiff as administratrix," etc. Up to the time of Henry Skidmore's death, he received the moneys, and paid the debts and liabilities of the firm. With the proceeds of this business, Henry Skidmore obtained from the United States government certain patent rights, and also purchased certain real estate in his own name. 52 SKIDMORE v. COLLIER. SECOND DEPAHTMENT, JUNE TERM, 1876. Henry Skidinore died intestate, May 19, 1873, possessed of all the property, etc., of the firm, and leaving his widow the defend- ant, since married to one Collier, and the other defendants, his children, only next of kin and heirs at law. June 9, 1873, the defendant Collier " was duly appointed admin- istratrix" of the goods, etc., of Henry Skidmore, and, as such, took possession of all the property, etc., of Henry Skidm.-e, " by him derived from the aforesaid copartnership business as such sole surviving partner." Since the death of W. D. Skidmore, the plaintiff had not received, from either Henry Skidinore or the defendant Collier, any of the moneys, etc., of said business, except that Henry Skidmore, during his life, paid her about forty dollars per month ; but neither said Henry Skidmore, nor the defendant Collier, as his administratrix, have ever accounted to plaintiff. On or about April 19, 1875, the defendant Collier, "as such administratrix, in pursuance of a decree of the surrogate of the county of Westchester, paid over the assets of the estate of the said Henry Skidmore, including the said copartnership property of which he died possessed as aforesaid," to the defendants, and " the sums hereafter to come into the hands of the said defendant, Catharine N. Collier, as such administratrix," would not be sufficient to satisfy plaintiff's claim, without resorting to the moneys already distributed as aforesaid. The plaintiff, as such administratrix, since December 1, 1874, and before the commencement of this action, demanded of the defendant Collier, as such administratrix, an accounting. There was no allegation that any more or further assets could possibly come into the hands of the appellant, as adminis tratrix. The second cause of action " repeats and renews the allegations set forth under the head of the first cause of action," and alleges that the defendant Collier, after the death of Henry Skidmore, " as his administratrix took possession," of all the property of said firm, "and as such administratrix continued to carry on said business," disposed of the patent rights, etc., and has never accounted. It also alleges that the defendant Collier, as such administratrix SKIDMORE v. COLLIER. 53 SECOND DEPARTMENT, JUNE TERM, 1876. " in pursuance of the decree of the surrogate of Westchester county, hereinbefore referred to, distributed, as part of the assets of said estate of Henry Skidrnore, deceased," the firm assets ; and has not funds to pay plaintiffs claim, " without resorting to the moneys so distributed to the other defendants," and again alleges a demand for an accounting, a refusal, etc. The defendant Collier demurred to the first cause of action upon the ground, that the facts therein stated did not constitute a cause of action against her. She also demurred to the whole amended complaint upon the ground " that several causes of action had been improperly united in said amended complaint." C. G. Prentiss, for the appellant. R. Me K. Sunsby, for the respondent. GILBERT, J. : There is really but one cause of action set forth in the complaint. The object of the suit is to obtain an accounting in respect to a partnership formerly existing between William D. and Henry Skidmore and one Bush, upon the allegation that after the death of William the partnership business was continued by Henry and Bush as surviving partners, for a short period, when Henry pur- chased the interest of Bush, and thereafter carried on the business as sole surviving partner until his death, and that after the death of Henry, his widow and administratrix, who has since married Mr. Collier, carried on the same business, with the partnership capital and effects, and that no accounting of the interest of William has ever been rendered to the plaintiff, who is his widow and adminis- tratrix. The first count is confined to the business done during the life of Henry, while the second includes that and also the business car- ried on after the death of Henry by his administratrix, Mrs. Collier. The other defendants are the children of said Henry, and his next of kin and heirs at law. They are made parties upon the allegation that their co-defendant has made a partial distribution of the assets of their father's estate to them as his next of kin, and that in thai 54 SKIDMORE v. COLLIER. SECOND DEPARTMENT, JUNE TERM, 1876. way they received moneys which belong to the plaintiff as adminis- tratrix of William D. Skidmore, and upon the further allegation that some of the real estate which descended to them as heirs of their father, was in fact purchased with the funds of the partnership aforesaid, and so constitutes a part of the effects thereof. We repeat, these facts constitute only one cause of action, namely the right to an accounting concerning the affairs of the partnership mentioned. In such an action it is proper to make all persons par- ties \vho are interested in the subject-matter of the accounting. It matters riot that the interests of the several defendants did not accrue in the same right. All persons should be joined whose interests are involved in the accounting sought, howsoever such interests may have arisen, as for instance heirs and personal repre- sentatives, residuary legatees and distributees, mortgagors and mort- gagees and their assignees. (Story Eq. PI., 319.) Such is the rule prescribed by the Code ( 118, 119; Richtmyerv. Richtmy&r, 50 Barb. 55 ; 1 Wait's Pr. 13T.) The facts stated in the complaint clearly make out a case within the equitable jurisdiction of the court. A surviving partner, though he has a legal right to the partnership effects, yet in equity is con- sidered merely as the trustee to pay the partnership debts, and to dispose of the effects of the concern for the benefit of himself and the estate of his deceased partner. It is the duty of the surviving partner to wind up the affairs of the partnership, and to account for, and pay over to the personal representative of the deceased partner his share of the partnership effects. If he has continued the part- nership business with the partnership funds, he is, as a general rule, liable to account for all profits made thereby, and the losses, if any, must be borne by himself. The capital of the deceased partner will be treated as trust property, and when it has been employed in carrying on the business of the concern, so much of the subsequent profits as can be attributed to the employment of the capital must be accounted for by those who have used it. (Lindley Part., 830, et aeq. ; Story Part., 343, 346 ; Willard Eq. [Potter's ed.] 708 ; Case v. Abeel, 1 Paige, 398.) This principle renders the defendant administratrix liable to account for the quasi breach of trust com- mitted by the intestate, Henry Skidmore. That is sufficient to dispose of the first ground of demurrer. She is also charged with SKIDMORE v. COLLIER. 55 SECOND DEPARTMENT, JUNE TERM, 1876. a like liability as administratrix, arising out of her carrying on said business after the death of said intestate. That is not a distinct cause of action. She merely followed the course pursued by said intestate in continuing the business. He treated the partnership effects as if they belonged solely to himself, and she acted accord- ingly, in administering the personal estate left by him. Her acts were not done on her own account, but in her capacity of adminis- tratrix. Having as administratrix received the effects of the part- nership, and the profits which accrued from the use thereof, and having acted in carrying on the business bonajide for the benefit of the estate which she represents, she is liable in her representa- tive capacity and ought not to be liable personally. (Pugsley v. Aikin, I Ker., 497.) Nor is any distinct cause of action set forth against the heirs and next of kin of Henry Skidmore. They are liable only to refund such sums as may be necessary to make good the amount which shall be found to be due to the plaintiff upon the accounting, and to have the real estate which has descended to them applied to the same purpose. It is not the object of the action to enforce the liability imposed on them by statute in respect to creditors of their father. The order overruling the demurrer must be affirmed with costs, with leave to defendants to answer in twenty days on payment of costs. BABNABD, P. J., concurred. DTKMAN, J., not sitting. Order overruling demurrer affirmed, with costs, with leave to defendant to answer in twenty days, on payment of costs. 56 PEOPLE EX BEL. ACKERLY v. CITY OF BROOKLYN. SECOND DEPARTMENT, JUNE TERM, 1876. THE PEOPLE EX BEL. SAMUEL AOKERLY AND OTHEBS, APPELLANTS, v. CITY OF BROOKLYN, RESPONDENT. Certiorari to review street openings issuing of, discretionary must be applied for toithin two years. The writ of certiorari is an appropriate remedy to review proceedings for the opening and grading of streets. Although there is no statutory limitation of tune within which the writ must be obtained, it is not one of right, and the court can, in its discretion, refuse it in any case, and quash it where it has been improperly granted. The general rule has been to quash the writ where application therefor has not been made in due season, and due season has usually been limited to two years. APPEAL from an order made at Special Term quashing a writ of certiorari. Application was made August, 1875, to review and set aside an assessment for grading and paving Orchard street, in the city of Brooklyn. The ordinance or resolution directing the improve- ment to be made was passed August 28, 1871. Advertisement of the proposed district of assessment and for remonstrances was duly made in June and July, 1871, and no remonstrances were presented. Advertisement for proposals to do the work was duly made, and the proposals received were opened October 9, 1871. The contract was awarded December 27, 1871, and the contract duly completed and the improvement fully made before December 21, 1872. The assessment was confirmed March 18, 1875, and the warrant for the collection of the assessment was issued April, 1875. The General Term, by an order made February, 1876, remitted the matter for a hearing to the Special Term. At the Special Term an order was made quashing the writ. T. F. Neville, for the relators. William C. De Witt, corporation counsel for the respondent. GILBERT, J. : No doubt a certiorari is an appropriate remedy in a case of this kind. Nor is there a statutory limitation of the time within which PEOPLE EX BEL. ACKERLY v. CITY OF BROOKLYN. 57 SECOND DEPARTMENT, JUNE TERM, 1876. the writ must be obtained. Still the writ is not one of right, but the court has a discretion to refuse it in any case, and to quash it where it has been improperly issued (Magee v. Cutler, 43 Barb. 239 ; People v. Supervisors of Allegany, 15 "Wend., 198 ; Susque- hanna Bank v. Supervisors of Broome, 25 N. Y., 312); and the general rule is, that it will be quashed where it appears that appli- cation for the writ was not made in due season. It has been held in many cases that it ought not to issue after the lapse of two years, and that when issued after that time it should be quashed. (Elmen- dorf v. The Mayor ', 25 Wend., 693 ; People ex rel. Agnew v. The Mayor, 2 Hill, 13 ; People ex rel. Davis v. Hill, 1 N. Y. S. C. [T. & C.], 154; People ex rel. Tompkins v. Landreth, 4 id., 134; People ex rel. Corwin v. Walter, 4 id., 638.) We fully approve the rule on this subject laid down in these cases and the reasons on which it is supported. It applies emphatically to the case before us. The relators did not move until four years, lacking two days, after the ordinance for the grading and paving the street was passed, and nearly three years after the work had been performed. No objection was raised by them until the assessment for the cost of the work was put in the course of collection. They should have availed themselves of this remedy within two years after the ordinance was passed. Not having done so they must be deemed to have acquiesced in the passage of the ordinance, and so to have precluded themselves from setting up the invalidity of the ordi- nance to affect the assessment founded thereon. The improvement is a local one, the expense of which is properly chargeable on the property of the relators and the other adjoining owners, and it would be unjust to others to relieve them from the burden by imposing it upon the city. We think the court below very properly quashed the writ and the order must be affirmed, with ten dollars costs and disbursements. BARNARD, P. J., concurred. DYKMAN, J., not sitting. Order affirmed, with costs. HUN VOL. VIII. 8 58 LONG ISLAND CUT v. LONG ISLAND R. R. CO. SECOND DEPARTMENT, JUNE TERM, 1876. LONG ISLAND CITY, APPELLANT, v. THE LONG ISLAND RAILROAD COMPANY, RESPONDENT. Municipal charter street regulations Railroad 14, tub. 5 of title 8, and 18 of title 11 of chapter 461 of 1871, conttrued. Power was granted to Long Island City by its charter, to regulate the use of its streets by railways ; such charter also provided that nothing therein contained should be construed as granting to said municipality power to pro- hibit or control, in any manner, the use of steam power on any railroad from any part of Long Island to the East river, and such railroad should have an unob- structed right to run to the East river with their locomotives and cars, but should furnish suitable guards or signals at the street crossings for the protection of the public, field, that the legal effect of this latter provision was to exempt the railroad of defendant, which ran from a part of Long Island through said city to the East river, from an ordinance requiring it to station a flagman at its crossings. APPEAL from a judgment of the County Court of Kings county dismissing plaintiff's complaint. The action was brought to recover of the defendant a penalty of fifty dollars, imposed by an ordinance of the plaintiff, because of the failure of the defendant to station a flag- man at a certain crossing as directed by said ordinance. The ordi- nance being passed under the power claimed to be vested in them by section 14, subdivision 5, title 3 of their charter, chapter 461, Laws of 1871. The dismissal was based on the ground, among others, that there was now a law requiring railroads to give certain "signals" on approaching all streets and public roads, and a penalty prescribed for their omission so to do, and that the plaintiff's charter conferred no power to require of the defendant an additional duty in regard thereto, or to impose an additional penalty for failure to perform it. B. Noble, for the appellant. Downing & Stanbrough, for the respondent. GILBERT, J. : By title 3, chapter 1, section 14, subdivision 5 of the cnarter of Long Island City (Laws 1871, chap. 461, p. 905), power has been granted to LONG ISLAND CITY v. LONG ISLAND R. R. CO. 59 SECOND DEPARTMENT, JUNE TEEM, 1876. the common council thereof to make an ordinance to regulate the usa of streets, etc., by railways, but by section 19, title 11 of that charter (Laws 1871, 982) it is provided that nothing therein shall be con- strued as granting to the mayor or common council of said city, or either of them, or to any officer of said city power to prohibit or control in any manner the use of steam power on any rail- road from any part of Long Island to the East river, and such railroad shall have an unobstructed right to run to the East river with their locomotives and cars, but shall furnish suitable guards or signals at the street crossings, for the proper protec- tion of the public. It is conceded that the defendants' railroad is one of those which are protected by this section. The legal effect of that provision, we think, is to except those railroads from the operation of the grant of power first mentioned. The common council cannot control the use of steam power by the defendants on their railroad, nor obstruct their right to run to the East river with their locomotives and cars. The ordinance passed by the plaintiff requires the defendants to station flagmen at all points where the railroad crosses a street, avenue, road or public place, and as it applies only to companies using steam power, is a direct attempt to control the use of that power on their road, and if carried out would necessarily obstruct the right which the defend- ants acquired by virtue of their act of incorporation. For any addition, by means of an ordinance, to the duties o$ burdens imposed by law on the defendants, would necessarily be an exercise of con- trol over, and restrictive of the right before enjoyed by them. We think, therefore, that the ordinance transcends the power vested in the common council, and upon that ground the judgment must be affirmed. BARNARD, P. J., dissented. Present BARNARD, P. J., GILBERT and DTKMAN, JJ. Judgment affirmed with costs. 60 PEOPLE v. GAINEY. SECOND DEPARTMENT, JUNE TERM, 1876. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENTS, v. CHARLES GAINEY, APPELLANT. Licciaes (% 8, chap. 175, 1870) may be granted for less than a year. The provision that all the licenses granted by the commissioners of excise shal expire at the end of one year from the time they shall be granted, is a limita tion of the power of the commissioners, not a constituent of the license itself, and within the limitation aforesaid the commissioners have full power to deter- mine the period of a license. Therefore, when a person was indicted for sell- ing liquor after May 1, 1875, and before December 7, 1875, without a license, held, he was not protected by a license granted December 7, 1874, and which, by its terms, expired May 1, 1875. CEBTIOBAEI on a bill of exceptions, to review the conviction of the defendant for selling strong and spirituous liquors. The defendant was indicted for selling spirituous liquors without a license. Admitted the sales at the time alleged (June 1, 1875), but claimed on the trial that, as the license was granted December 7, 1874, although by its terms it expired May 1. 1875, it did not expire until the end of the year. That, as the statute read, " all licenses shall expire at the end of one year from the time they are granted," the period of time being fixed by the legislature, the commissioners of excise had no power to fix a different time, and their attempt to fix a different time in the license was mere sur- plusage, as when they granted a license their power was expended. Geo. H. Decker and D. D. McKoon^ for the appellant. C. F. Brown, district attorney, for the respondent. GILBERT, J. : We think the construction which the court below put upon the statute under which the defendant's license was granted (Laws 1870, chap. 175, 3) is the correct one. The provision that all the licenses granted by the commissioners of excise shall expire at the end of one year from the time they shall be granted, is a limitation of the power of the commissioners. It is not a constituent of the license itself. "Within the limitation aforesaid, the commissioners YOUNG v. DRAKE. 61 SECOND DEPARTMENT, JUNE TERM, 1876. have full power to determine the period of the license. The powei being a general one, to grant licenses as provided by law, the only restriction upon it must be sought in the statutes regulating excise, and no restriction upon the power of the commissioners to grant a license for a shorter period than one year has been pointed out. The rulings of the court upon the trial, we think, were clearly proper. The conviction should be affirmed, and the proceedings remitted to the Orange County Court of Sessions with directions to proceed thereon according to law. BABNABD, P. J., concurred. Present BABNABD, P. J., GILBEBT and DYEMAN, JJ. Conviction affirmed and proceedings remitted to the Court of Sessions in Orange county. CHARLES C. YOUNG, RESPONDENT, v. WILLIAM F. DRAKE, ALBERT L. PRITCHARD AND CHARLES CURTISS AND THE SMITH AND PARMELEE GOLD COMPANY. APPELLANTS. Action by stockholder against trustees and company when maintainable Code, 119 Evidence fliat corporation will not prosecute. A. complaint averring that there are only five trustees of a company; that the plaintiff was a stockholder when the action was brought; that three of such trustees, who were the persons charged with committing a fraud, were made defendants, and that the action is brought in behalf of all other stockholders who will join, comes within section 119 of the Code, and a demurrer interposed thereto on the grounds "that the plaintiff has not legal capacity to sue: 1st. Because the plaintiff only became a stockholder after the matters complained of occurred; 3d. Because the statutes of this State restrict the power to bring actions of this nature to the people of the State, through their attorney-general, and to creditors of the company; 3d. That the Smith and Parmelee Gold Com- pany alone had the right to maintain the action, and had never been requested BO to do," will not be sustained. Although the general rule is that an action of this kind must be brought by the corporation, yet where the complaint shows that the corporation is still con- trolled by the same trustees who are accused of the fraud, or where such vjcused persons are a majority of the trustees, it is sufficient evidence thfti 62 YOUNG v. DRAKE. SECOND DEPARTMENT, JUNE TERM, 1876. the corporation will not prosecute, and that an application to the trustees to direct a suit to be brought against themselves, or the derelict majority of theil members, would be useless. A purchase of stock, after an alleged fraud is committed, does not condone the fraud, and the purchaser acquires all the rights of the person of whom he purchased. APPEAL from an order made at Special Term, overruling demurrers to the complaint. The complaint alleged, in substance, that the plaintiff was the owner of 1,000 shares of the capital stock of the Smith and Parmelee Gold Company, a corporation organized under the general laws of the State of New York, having five trustees and its principal place of business in the city of New York, and that he brought the action in behalf of himself and of all the other stockholders who should join therein. That the defendants Drake and Pritchard were trustees of said company in September, 1868 ; the defendant Curtis in January, 1869 ; two other trustees, Unfits Hatch being elected in January, 1870, and Jacob B. Jewett in January, 1871 ; all of whom were re-elected and were trustees when his action was brought. That on the llth day of January, 1869, the defendant Pritchard was elected president and the defendant Drake treasurer thereof, and have ever since continued to hold said offices. That at meetings of said trustees, at which said Hatch and Jewett were not present, but at which the three, named as defendants in this action, constituted a quorum for the transaction of business, they voted to each other divers sums of money as salaries and for other purposes. That in pursuance of such resolutions the said Pritchard received from the treasurer, on or about the same day, the sum of $350, and also the further sum of $1,150 on account of salary ; and the said Drake took from the company funds, in his hands as treasurer, the sum of $275, and the further sum of $1,150 on account of salary. Then the said Pritchard and Drake, for the $850 balance of salary respectively, and also for the further sum of $166.66, added thereto by each, for salary beyond the time specified in said resolu- tions, with the knowledge and assent of the said Curtiss, procured judgments against the company in the district of Gilpin county ; YOUNG v. DRAKE. 63 SECOND DEPARTMENT, JUNE TERM, 1876. Colorado, where the company's mining lands were situated, which judgments were entered in May term, 1871, each for the sum of $1,066.66. That executions were issued thereon to the sheriff of the county aforesaid under which sales were made of the mining lands, mills and machinery of said Smith and Parmelee Company, in Colorado aforesaid, in 1871, of great value, but on a single bid only in the interest of the plaintiffs in the judgments, to an amount sufficient only to cover or pay the said judgments ; whereby the said Smith and Parmelee Company were divested of the lands, etc., so sold, and sustained great damages by reason thereof. And plaintiff avers that the said judgments were recovered and enforced by the said Pritchard and Drake, in collusion each with the other, and that defendant Curtiss had knowledge of all the proceedings and concurred therein, the three making a majority of the trustees. That the resolutions of the trustees, by which the sums aforesaid were given to the said Pritchard and Drake, were void in law, and that the said defendants Pritchard, Drake and Curtiss are liable for the amounts so unlawfully voted and paid to said Pritchard and Drake. That the recovery of judgments for the residue claimed under said resolutions, and for the additional sum of $166.66 added thereto, without any authority whatever, was invalid, and that the said Pritchard, Drake and Curtiss ought to answer for the loss to the company of the property sold under executions issued upon such judgments, and claimed judgment against the defendants Pritchard, Drake and Curtiss therefor, and that a receiver be appointed to receive the sum found to be due by them and distri- bute it to the stockholders. John S. Lawrence, for the appellants. Alex. H. Dana, for the respondent. GILBERT, J. : We think the demurrers were properly overruled. The general rule no doubt is, that an action of this kind must be brought by the corporation ; but where the complaint shows that the corporation is still under the control of those who must be defendants in the suit, the stockholders, who are the real parties in interest, may 64 YOUNG v. DRAKE. SECOND DEPARTMENT, JUNE TERM, 1878. bring the suit in their own names, making the corporation a party defendant ; for a court of equity never permits a wrong to go unre- dressed merely for the sake of form. The individual defendants are in law, as well as in name, trustees, and the stockholders are the cestuis qite trust, and have a joint interest in all the property and effects of the corporation. Upon general principles of equity, therefore, stockholders have a right to maintain an action against the trustees of the corporation for a fraudulent breach of trust, when it is apparent that the corporation itself will not sue for their benefit. And where the corporation is still controlled by the same trustees who are accused of the fraud, or where such accused per- sons are a majority of the trustees, that is sufficient evidence that the corporation will not prosecute, and that an application to the trustees to direct a suit to be brought against themselves, or the derelict majority of their members would be useless. The law never requires the performance of a supererogatory act. (Ang. & Ames on Corp. [10th ed.], 312, and cases cited.) The action is brought in behalf of the plaintiff and all other stockholders, con- formably to section 119 of the Code. It is averred in the com- piamt that there are only five trustees ; three of them, being the persons charged with having committed the fraud, are made defend- ants, and it is alleged that they are still trustees. The case, we think, is within the rule stated. It is enough that the plaintiff was a stockholder when the action was brought. If he purchased his stock after the alleged fraud was committed, that did not condone the fraud. The plaintiff acquired all the rights of the person of whom he purchased. (Ramsey v. Gould, 57 Barb., 398.) It is hardly necessary to discuss the other points, namely : that there is a misjoinder of causes of action, and that the court has no jurisdiction. The complaint sets forth only one cause of action, and the court clearly has jurisdiction. The order must be affirmed, with costs, with leave to the defend- ants to amend in twenty days on payment of costs. BARNAKD, P. J., concurred. DYKMAN, J., not sitting. Order overruling demurrers affirmed, with costs, with leave tc defendants to amend in twenty days on payment of costs. ANDREWS v. MONILAWS. 65 SECOND DEPARTMENT, JUNE TERM, 1876. BENJAMIN ANDREWS, RESPONDENT, v. CATHARINE A. MONILAWS, APPELLANT. Harried woman collection of debt, charged on her separate estate should be by com- mon law action not by action for foreclosure Judgment by default Belief greater than that asked for in complaint irregular. The defendant, a married woman, made her promissory note, in and by which she in express terms charged her separate estate. An action was brought (by service of summons for relief) to enforce the lien upon and payment of the amount thereof out of the defendant's property. Defendant did not appear, and on default plaintiff obtained an order of reference to compute the amount due, and upon the report of the referee judgment was entered, adjudging and directing that the defendant's property so charged and described in the complaint be sold by a referee therein named, and that the defendant be barred of and from all equity of redemption in said premises, etc. The said premises were sold by such referee in pursuance of said judgment. Held, that sections 274 and 287 of the Code provide the same remedy by judgment and execution against a married woman as the law affords against other persons, with the single qualification that the execution can be levied and collected only of her separate property. That the statute having given a legal remedy which was adequate, there was no occasion for administering equitable relief. That although formerly such a contract was treated as an appointment of or charge upon the separate estate of a married woman, and the only remedy for its enforcement was by bill La equity, yet that mode of proceeding had been entirely superseded by section 7 of chapter 172 of the Laws of 1862, which enacted that " a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate in the game manner as if she were sole." That such enactments were in pan materia with the special statutes for the pro- tection of married women, and should be so construed as to insure to them the same protection against the sacrifice of their property which the law gives to a feme sole, viz., levy, advertisement, right of redemption, etc. That the more summary and expensive remedy pursued in this case of fore- closing a lien or charge, and thereby cutting off the right of redemption, was in contravention thereof. A judgment, taken by default, giving greater relief than that demanded in the com- plaint, should be set aside. APPEAL from an order made at Special Term, denying a motion to Bet aside a judgment against the defendant and a sa^e made in pursuance thereof. The defendant, Monilaws, a married woman, HUN VOL. VIII. 9 66 ANDREWS v. MONILAWS. SECOND DEPARTMENT, JUNE TERM, 1876. executed her note at six months, dated April 1, 1873, for $188.16, with interest, to George Andrews, and in and by it charged her separate estate with the payment thereof. The note, before its maturity, was duly indorsed to the plaintiff, who, when it became due, demanded payment, and on failure to pay brought suit. A summons for relief and a verified complaint were served May 10, 1875. The latter demanded judgment for $188.16, with interest from April 1, 1873, and that defendant's property, deserib ing it, be made chargeable with said indebtedness, and that it be sold under the direction of the court for the payment of said indebt- edness, and that the plaintiff have such other order or relief in the premises as may be just, together with the costs in this action. Notice of Us pendens was filed May 25, 1875. No appearance, answer or demurrer was served by defendant, and plaintiff, on default, obtained an order of reference to compute amount due, and on the coming in of the report an order was made at Special Term confirming it, and adjudging that all and singular the prem- ises mentioned in the complaint, or so much thereof as may be sufficient, be sold, etc., following the language of the ordinary judgment on the foreclosure of a mortgage, including the naming of the referee to sell, the execution of the deed to the purchaser, the barring of the equity of redemption, and disposition of the proceeds of sale, etc., including an allowance of two and a half per cent. Upon an affidavit of the defendant, the judgment roll, and other papers herein, an order was obtained to show cause why the judg- ment and all subsequent proceedings should not be set aside on the ground : 1. That the summons was irregular, the same being for relief instead of contract. 2. That the damages should have been assessed by the clerk, and not by a referee, as the amount of plaintiff's claim was liquidated. 3. That the decree and part of judgment roll was irregular and void. a. In ordering the premises to be sold by a referee. b. In that it bars and forecloses the defendant of and from all equity of redemption. c. In granting an allowance to plaintiff of two and one-half per cent. ANDREWS v. MONILAWS. 67 SECOND DEPARTMENT, JUNE TERM, 1876. 4. That the bill of costs and taxation by the clerk was irregular and void. a. In that the plaintiff was not entitled to fifteen dollars costs after notice of trial, the defendant not appearing. 5. Nor allowance by statute. c. Nor allowance by the court. d. Nor referee's fees. e. Nor for filing Us pendens. f. Nor for searches. The motion was denied, and the defendant appealed to this court. Christian G. Merits, for the appellant. Joseph S. Ridgway, for the respondent. GILBERT, J. : A promissory note of a married woman, made in the course of her separate business, or which is for the benefit of her separate estate, is a valid contract and may be enforced at law in the same manner as if she had not been married. Formerly such a contract was treated as an appointment of, or charge upon, the separate estate of the married woman, and the only remedy for its enforce- ment was by bill in equity. But that mode of proceeding to enforce such contracts has been entirely superseded by legislation. By sec- tion 7 of chapter 172 of the Laws of 1862, it is enacted, that a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman the same may be enforced by execution against her sole and sepa- rate estate in the same manner as if she were sole. Sections 274 and 287 of the Code provide the same remedy by judgment and execution against a married woman as the law affords against other persons, with the single qualification that the execution can be jevied and collected only of her separate property. The language of these statutes is perfectly plain. If, however, they were sus- ceptible of a construction against their manifest intent, which would enable us to uphold this proceeding, we should not apply it. The statute having given a legal remedy which is adequate, there is no occasion for administering equitable relief. The enactments cited 68 FOSTER v. HAWLEY. SECOND DEPARTMENT, JUNE TERM, 1876. are in pari materia with the special statutes for the protection of married women, and they should be so construed as to insure to them the same protection against a sacrifice of their property which the law gives to femes sole, namely, levy, advertisement, right of redemption, etc. The more summary and expensive remedy pursued in this case, of foreclosing a lien or charge, thereby cutting off the right of redemption, which is given by statute to all per- sons whose lands have been sold on execution, we think is in con- travention of those enactments. So are the authorities. (Hier v. Staples, 51 N. Y., 136 ; Corn Ex. Ins. Go. v. JSabcock, 42 id., 613 ; Peack v. Lemon, 1 Lans., 295; Baldwin v. Kimmel, 16 Abb., 353 ; 1 Wait's Pr., 124.) The judgment was taken by default, yet it gives the plaintiff greater relief than is demanded in the complaint. For that reason also it should be set aside. (Code, 275.) The order appealed from should be reversed, and an order should be entered vacating the judgment and all subsequent proceedings, with ten dollars costs at Special Term, and ten dollars costs on this appeal, besides disbursements. BARNARD, P. J., concurred. DYKMAN, J., not sitting. Order reversed and motion granted with ten dollars costs of motion and ten dollars costs of appeal, and disbursements. MARY ANN FOSTER, APPELLANT, v. DAVID HAWLEY AND OTHERS, RESPONDENTS. Concubinage change of, into matrimony evidence of. L cohabitation, illicit in its origin, is presumed to continue to be of that charac- ter unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation con- tinued, and satisfactorily prove that it had been changed into that of actual marriage by mutual consent. The presumption of a contract of marriage cannot be raised when the direct consequence of it would be to involve both parties in the crime of bigamy. FOSTER v. HAWLEY. 69 SECOND DEPARTMENT, JUNE TERM, 1876. APPEAL from an order of the surrogate of Westchester county, made in the course of the proceedings to prove the will of Isaac M. Singer, denying the application of Mrs. Mary A. Foster to be allowed to intervene in the proceedings and contest the probate of his will on the ground that she was his widow. In 1830, Isaac M. Singer married, at Palmyra, New York, Cath- arine Maria Haley. They had two children born to them and lived together until 1836. While Singer was on one of his theatrical rounds he met, at Baltimore, in 1836, Mary Ann Sponsler (the plaintiff;. He left Baltimore and went to New York, whither she followed him, and although she knew he then had a wife living, cohabited with him, traveling about the country with him, taking such names as he assumed and after his prosperity (arising from his invention of a sewing machine) his real name of Singer. She had ten children by him. In 1860, or about twenty-four years afterward, Singer obtained a divorce from his wife and continued to cohabit with the plaintiff for about six months thereafter, when he separated from her. Afterward, in about 1861, she commenced a suit for divorce. No decree was had therein, but Singer settled the matter pecuniarily with the plaintiff, and in 1862 the plaintiff married one Foster. Subsequently (June 13, 1863) Singer married the woman whom he recognized in his will as his wife, by whom he had six children, left the country and died in England in 1875. On the probate of his will, the plaintiff claimed to intervene as his wife and widow, and the question having been tried as a preliminary issue, the surrogate made his decision and order against the plaintiff, January 10, 1876, from which she appealed to this court. It was claimed that the commencement of the illegal cohabitation between the plaintiff and Singer was based on a promise by him that if she would live with him as his wife, as soon as he should be able to procure a divorce from the woman who claimed to be his wife, he would marry her ; that subsequent cohabitation after such divorce was obtained was a ratification of their marital rela- tion, and evidence that they consented to be man and wife. R. W. Van Velt, for the appellant. The twenty-four years matri- monial recognition and cohabitation of the parties, followed by the 70 FOSTER v. HAWLEY. SECOND DEPARTMENT, JUKE TKKM, 1876. gix months deliberate ratification and confirmation of their marital relationship, during which no disqualification whatever on the part of either existed, furnished absolute and conclusive evidence that they consented to be man and wife. Matrimonial cohabitation, general repute, public acknowledg- ment, private admissions, a judicial decision, a solemn agreement, confirmed by partial performance by the testator, leave no ground whatever on his part for a denial of consent. Under all the authorities, English and American, the marriage is made out. (Cunningham v. Cunningham, Dows. Par. R., Vol. 2, 483 ; McAdam v. Walker, 1 Dow., 148 ; Fenton v. Reed, 4 Johns., 51; Jackson v. Claw, 18 id., 345 ; Jackson v. Winne, 7 Wend., 47 ; Canjolle v. Ferrie, 26 Barb., 178 ; The People v. Humphrey, 7 Johns., 314 ; Rose v. Clark, 8 Paige, 574 ; Cheney v. Arnold, 15 K Y., 345 ; In the Matter of Taylor, 9 Paige, 611 ; Clayton v. Wardell, 4 Com., 230; O'Gara v. Eisenlohr, 38 N. Y., 296; Campbell v. Campbell, L. R. [2 Scotch and Divorce Cases], 182.) James C. Carter and John K. Porter, for the respondents. The prime requisite to a valid marriage under our law is the interchange between the parties of a mutual present consent to take each other as husband and wife. This consent is of itself fully sufficient ; and for it there is no substitute or equivalent. (Clayton v. Wardell, 4 N. Y., 230 ; Fenton v. Reed, 4 Johns. ; Queen v. Miller, 10 01. & Fin. ; 1 Bishop on Mar. and Div., 227, 228.) The modes of proving the existence of such consent are various. But they should never be confounded with the consent itself, which is always the same. (Lord CHELMSFORD, in Shedden v. Patrick, L. R. [1 H. L. Pr. and Div.], 540, 541 ; 1 Bishop on Mar. and Div., 246, 247.) Proof of cohabitation as husband and wife does not constitute mar- riage. It may, in some cases, be evidence of marriage. It can never be any thing more. " Consensus, non concubitus, facitnup- tias" is the universally received maxim. (Shedden v. Patrick, ubi tupra ; Letters v. Cody, 10 Cal., 583 ; Jackson v. Winne, 7 Wend,, 47 ; Cheney v. Arnold, 15 N. Y., 345 ; Duncan v. Duncan, 10 Ohio State, 181.) If the agreement is not one of present consent to accept each other as husband and wife, but is per verba defuturo, looking to a marriage at some future time, it not only fails to prove FOSTER v. HAWLEY. 71 SECOND DEPARTMENT, JUNE TERM, 1876. actual marriage, but, by its very terms, excludes any such conclu- sion. (Lord COTTENHAM in Stewart v. Mensies, 2 Rob. App. Cases, 547, 590 ; Cheney v. Arnold, 15 N. Y.) GILBERT, J. : We cannot assent to the proposition put forth, in behalf of the appellant, that the illicit relation which she formed with Singer, assuming that it was formed on the faith of his promise to make her his wife whenever the impediment of his previous marriage should have been removed, was changed into matrimony merely by the removal of that impediment and their continuance of the same mode of life as theretofore. On the contrary, we think that it was incumbent on Mrs. Foster to show that something was done, after such impediment had been removed, which in fact constituted a marriage between them, and that there was a failure of proof on that point. A concubine cannot acquire the rights of a wife by survivorship. The marriage relation, however formed, is a sacred one, and sound public policy requires that its sanctity be preserved inviolate. It is quite apparent that if married persons were per- mitted to make valid executory promises of future marriage with third persons this policy would be at once subverted, and the prac- tical evils of polygamy would receive the sanction of law. The question, therefore, is one of feet to be determined by the applica- tion of legal rules to the evidence in the case. It is unnecessary to go over that evidence in detail. It is undisputed that the relation between Singer and the appellant was illicit in its origin. It began in 1836 when Singer had a wife living. It was voluntarily entered into by Mrs. Foster, with full knowledge of that fact, and so con- tinued until 1860, a period of nearly twenty-four years, when Singer obtained a divorce from his wife. That relation was none other than an illegal and adulterous one. A valid marriage between the parties to it, prior to such divorce, was not possible. The presump- tion of law is, that a cohabitation which was illicit in its origin continues to be of that character throughout its duration, unless the contrary be proved. (Clayton v. Wardell, 4 N. Y., 230; Calotte v. Ferrte, 23 id., 106 ; O'Gara v. Eisenlohr, 38 id., 296 ; Cunningha/m r. Cunningham, 2 Don. P. C., 481 ; Lapsley v Grierson, 1 H. L. Cases, 498 ; G. C., 8 Scotch Sess. Cases [3d 72 FOSTER v. HAWLEY. SECOND DEPARTMENT, JUNE TEKM, 1876. series], 47.) The only evidence to which we can give credence going to rebut that presumption in this case, consists of the same course of conduct between Singer and Mrs. Foster as that which preceded Singer's divorce, namely, cohabitation, and acts proving that Singer recognized Mrs. Foster and held her out to the world as his wife, coupled with his promise to marry her when he should have obtained a divorce from his wife, made at the commencement of the adulterous connection between them ; that, we think, is not sufficient. The concubinage which existed for so long a period cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such a contract, it is true, may be proved by circumstances, but they must be such as exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of an actual marriage by mutual consent. (Per Lord CAMPBELL, Queen v. Millis, 10 Cl. & Fin., 749, et 8e%.) That such a contract was not made between Singer and Mrs. Foster is, we think, satisfactorily shown by proof of the marriage of both Singer and Mrs. Foster with third persons soon after their separa- tion from each other. We cannot raise a presumption of a contract of marriage when the direct consequence of so doing would be to involve both parties to it in the crime of bigamy. We are unable to accept the testimony of Mrs. Foster that she married her present husband under the belief that she had been divorced from Singer. It would be hard to believe, if uncontradicted ; but it was contra- dicted by the witness's own conduct and declarations, especially by the certificate of her marriage with Foster under her maiden name of Sponsler, which states that it was her first marriage, and which she received and kept ; and especially by her sworn statement made in the complaint in an action brought by her against Singer in 1864, after her marriage with Foster, to the effect that she began living with Singer in 1836 under the inducement of his promise that he would marry her as soon as he could obtain a divorce from his wife. That he never fulfilled that promise by any formal act, and that he persistently refused to do that which Mrs. Foster appears to have regarded as essential to its fulfillment, namely, yield his consent to a ceremonial marriage. In the face of such evidence an actual marriage between Singe* EL WELL v. SKIDDY. 73 SECOND DEPAKTMENT, JUNE TERM, 1876. and Mrs. Foster seems to us to be not only unproved, but extremelj improbable. The order appealed from must be affirmed, with costs BARNARD, P. J., concurred. Present BARNARD, P. J., GILBERT and DYKMAN, JJ. Order of surrogate affirmed, with costs. JAMES W. ELWELL AND OTHERS, KESPONDENTS, v. FRANCIS SKIDDY AND OTHERS, APPELLANTS. Demurrage when party not entifted to Counter-claim. A master of a vessel chartered her for three consecutive voyages to Cuba and return to New York, the first to start from a port in Canada, the outward voy- ages to be with sugar-box shooks, the return ones with sugar and molasses. The charter party specified a certain rate of freight and also of demurrage and bound the cargo to the performance of the charter by the charterer. The ves- sel was detained in Cuba by the custom authorities on account of the illegal act of the master. A portion of the cargo was also seized on account thereof and its release could only be obtained by the payment of $2,559.38 by the agent of the charterer. Held, that the master was not entitled to demurrage for delay occasioned by th seizure or detention of the vessel for his own unlawful act. Held, also, that a counter-claim to a claim for freight thereunder, could be sus- tained for loss occasioned by the excessive drainage of the hogsheads of sugar caused by the detention of the vessel after a full cargo had been obtained, such detention arising from the illegal act of the master. Held, also, that a counter-claim could be sustained for moneys compulsorily paid by the agent of the charterer, to release their property seized because of the unlawful act of the master. APPEAL from an order denying a motion for a new trial made upon the minutes, and from a judgment entered on a verdict at the trial. The plaintiffs were assignees of a claim for freight and demurrage, claimed to be due to the owners of the brig Harry Yirden. The defendants were assignees of a bill of lading (held for advances) and also assignees of the consignees, of the cargo brought by said brig from Cardenas to New York. The master of the brig chartered her for three voyages to Cuba and return to New York, the first to HUN VOL. VIII. 10 74 EL WELL v. SKIDDY. SECOND DEPARTMENT, JUNE TERM, 1876. start from a port in Canada, the outward voyages to be with sugar- box shooks, the return ones with sugar and molasses. The charter party specified a certain rate of freight and also for demurrage and bound the cargo therefor. The master, on his first voyage, on applying for his consular manifest, stated his cargo in round num- bers at 5,000 sugar-box shooks, and this number was accordingly inserted in the consular manifest. He actually took on board, however, as shown by his own manifest, 7,730. For such inaccu- racy or discrepancy, on his arrival in Cuba, the custom authorities fined the master twenty-five dollars, which he paid ; afterward a further fine of $568.06 was imposed on account thereof ; payment was refused, but a bond therefor was given by the agent of the ship and the charterer, which was enforced after the brig sailed. On the next voyage, on the arrival of the brig at Cardenas, the Intendente ordered the confiscation of the 2,730 shooks in excess of the consular manifest, to relieve which the charterers had to pay $2,559.38 gold. A fine equal to the value was also directed to be imposed on the captain, and to compel its payment a clearance was refused to the vessel, and it was detained a long time after it was fully laden, by reason whereof the sugar sweltered and wasted so as to cause a loss, as claimed, of nine and twenty-six one hun- dredths per cent, whereas the average on such voyages was only from three to four per cent, causing a damage claimed to be $2,397.60 gold. Joshua, M. Van Cott and James K. Hilly for the appellants. Benedict, Toft & Benedict, for the respondents. DTKMAN, J. : This cause was tried at the Circuit, and at the close of the testi- mony on both sides the court directed a verdict for the plaintiff, which included freight, demurrage, and interest, and excluded the claim of the defendants upon their counter-claim. This verdict is not founded upon any promise of the defendants, or either of them, for the court refused to submit any question of fact to the jury. We must, therefore, assume that there was no such promise. The defendants were the assignees of the consignees of the bil EL WELL v. SKIDDY. 75 SECOND DEPARTMENT, JUNE TEEM, 1876. of lading for the cargo of sugar brought to New York from Car- denas on the second voyage of the vessel under the charter party. They, therefore, stood in the place of the consignees, and as they accepted the goods they became liable for the freight. (Hinsdell v. Weed, 5 Denio, 172 ; 3 Kent Com., 221 ; Abb. on Ship, [by Story], 284, 4.) If, therefore, nothing more was included in this verdict, it would only be necessary to examine the question arising upon the defendants' counter-claim. But the court included in the verdict the claim for demurrage, and it becomes necessary to deter- mine whether the defendants are liable for this charge. This will depend upon the question whether the vessel was detained by the freighter or his agents or consignees, beyond the time allowed by the charter party. The detention complained of took place on the second voyage of the vessel to the island of Cuba. The vessel arrived at Cardenas in March, 1870, about the middle of the month, and was loaded and ready to sail about the middle of April following. It was agreed that twenty lay days were con- sumed on the second trip. There is some little discrepancy in the case respecting the date, but this is not very important. The vessel was detained from the time she loaded in April until the sixteenth day of June following. That detention was for the fol lowing reasons : The first cargo under the charter party was taken on at Pierre- ville, in Canada, and consisted of sugar-box shocks. As this place was in the district of Quebec, the residence of a Spanish consul, it became necessary for the captain of the vessel to obtain from the Spanish consul at that place a consular manifest of bis cargo. While the vessel was taking on the cargo, the captain made an effort to find the Spanish consul at Quebec, but he had gone to Montreal, and he thereupon sent to Montreal for his consular manifest, and stated his cargo, in round numbers, at 5,000 sugar-box shocks. This r.umber was accordingly inserted in the consular manifest. The number actually taken on was 7,730. When the vessel arrived in Cardenas, the captain presented to the custom-house officer the consular manifest, whnh was inaccurate, of course, and called for only 5,000 shocks, and also his own manifest, which stated the true number at 7,730. By such inaccuracy the captain incurred a fine of twenty rive dollars, which was oaid by Mr. Bacot, who was the 76 fcLWELL v. SKIDDY. SECOND DEPARTMENT, JUNE TERM, 1876. agent both of the ship and the charterer. Afterward the custom- house officers imposed on the captain a further fine of $5G8.06. Payment of this fine was refused, but Mr. Bacot gave a bond for its payment, if it should be enforced by the intendente. After the vessel sailed, the fine was enforced and paid by Mr. Bacot. The vesse arrived in Cardenas on her second voyage in March, and the intendente ordered the confiscation of the 2,730 shocks, that being the number in excess of the number called for by the consular manifest, and a fine equal to their value to be imposed on the cap- tain, and in order to compel the payment of the fine by the captain a clearance was refused to the vessel. The captain resisted and appealed to the higher authorities, who, after a delay of two months, allowed the vessel to be cleared, and she sailed on her second return voyage on the sixteenth day of June. Now whatever else may be said about this delay or the cause of it, or the merits of the controversy that caused it, it cannot be said that it was caused by the defendants or their consignor or his agent ; and as unreasonable detention of the vessel by the freighter or his consignee lies at the foundation of all liability to the owner for demurrage, it must follow that no such liability was shown in this case. So far from the facts showing any detention of the vessel by the freighter or his consignees, they show that the deten- tion was caused solely by a breach of the revenue laws of the island of Cuba by the captain of the vessel, and that such breach was willful and intentional. It is no answer to this to say that the Cuban authorities visited upon this vessel unusual and extraor- dinary penalties for this breach of their revenue laws. It will not do for the captain to say, it is true I committed a breach of the revenue laws but I ought to have been let oflf with a fine of twenty- five dollars, and all beyond that is improper and illegal. Let it be conceded that all this is so, that does not change the matter at all. The Cuban authorities treated the conduct of the captain as an attempt to perpetrate a fraud upon the revenue laws, and did what was done to detain the vessel for that reason. That was the proxi- mate and sole cause of the delay. it follows, from this view, that the item of demurrage cannot be recovered against the defendants, and that there must be a new trial. EL WELL v. SKIDD Y. 77 SECOND DEPARTMENT, JUNE TERM, 1876. The court on the trial rejected the defendants' counter-claim foi damages ; and as that question will again be presented on the new trial, it is proper that we should settle it so far as we can do so. The first item of this counter-claim arises out of the following facts : The Intendente imposed a fine upon the captain for infringements imputed to him in his manifest, owing to the difference existing between the two, as has been before stated, and the 2,730 box shocks, which gave rise to the infringement attributed to the cap- tain, were seized, the seizure approved and an embargo ordered to be laid upon them, and Mr. O'Callahan, the owner, was required to give up the shooks or pay their equivalent in money. Proper resistance was made by Mr. Bacot on behalf of Mr. O'Callahan, but no effect was produced, and an order of attachment was issued and property up to the amount of this claim was levied on a lot of sugar in a lighter, and the same was stopped in the bay. At this time, and compelled by these measures, this sum was paid into the treasury of the custom-house, under protest, and reserving all rights against the vessel and owners. It appears from the case that there was no way of avoiding such payment as the treasury, in such cases, admits no application until after payment. We think these facts show that these goods were seized, their payment compelled by the fault of the captain, and that this is a well recognized ground of liability. (Abbott on Shipping, 383; Maclalahan on Shipping [2d ed.], 388 ; Gosling v. Higgins, 1 Camp., 451 ; Howland v. Greenway, 22 How. [U. S.], 491.) We think, therefore, that the court below fell into an error in refusing to charge the jury as requested, that the defendants were entitled to recoup or set-off against the freight the sum the charterer was obliged to pay to procure release of his sugar-box shooks, with interest. The second item in the defendants' counter-claim is the damage arising from the excessive drainage from the hogsheads of sugar, arising from the length of time which elapsed between the ship- ment and delivery of the sugar. The facts, out of which this claim arises, have been already stated. In order to compel the payment of the fine imposed upon the captain for the infringements imputed to him in his manifests, a clearance was refused to his vessel, and she was not allowed to go to sea until about the middle of June. During all this time the sugar sweltered and roasted, and caused 78 VROOMAN v. TURNER. SECOND DEPARTMENT, JUNE TERM, 1876. the loss which forms the basis of this item. As this waste waa caused by the unwarranted delay, which we have before seen waa the fault of the captain, we think the court below also fell into an error in refusing to charge as requested, that the defendants were entitled to set off or recoup against the freight the damage to, and loss on the cargo of sugar, occasioned by the detention of the ves- sel after a full cargo had been shipped and the vessel was ready to put to sea. If this loss had been caused by a voluntary delay to sail, the lia- bility of the owners would not be disputed, and we do not see how the plaintiffs are in any better position when the delay was caused by the fault of the captain. The delay was a breach of duty as well as a breach of contract, and is not excused by the act of God, the perils of the sea, or the act of a public enemy. In the case of Hinsdell v. Weed (5 Denio, 172) Judge McKissocK held that the consignee may recoup the damage on account of the property not delivered in the action against him for freight, and this decision is referred to with approbation in the case of Davis v. PaUison (24 N. Y., 324). The judgment must be reversed and a new trial granted. Present BAENABD, P. J., GILBERT and DYKMAN, JJ. Judgment and order denying new trial reversed and new trial granted, costs to abide event. CHARLES W. VROOMAN, GUARDIAN, ETC., RESPONDENT, v. HARRIET B. TURNER, WIFE OF THOMAS C. TURNER, IMPLEADED WITH CHARLES E. EVANS AND OTHERS, APPEL- LANT. Grantee assumption of mortgage by liable to pay, although her grantor was not Coverture no defense. 1. executed a mortgage on certain premises to B., and afterward sold and con- Teved them to C. , and by various mesne conveyances they came to T., a married woman. In none of the conveyances except the one to T, was there any covenant by the grantee to pay said mortgage. Held, that T. was liable on her covenant. Further, that her coverture was no defense to the action, as the liability waa contracted upon the purchase of real estate in her own name, and which thu VROOMAN v. TURNER. 79 SECOND DEPARTMENT, JUNE TERM, 1876. became her separate estate, and her covenant was a contract to pay a portion of the purchase-money, and was, therefore, for the benefit of her separata estate. APPEAL by the defendant Harriet B. Turner, wife of Thomas C. Turner, from so much of a judgment of foreclosure and sale, entered with the clerk of Kings county, January 29, 1876, as directed that she should pay any deficiency. The action was brought for the foreclosure of a mortgage made by Charles E. Evans to John W. Eddy for $5,500 on property in Brooklyn. Eddy assigned the mortgage to Robert R. Rhodes, guardian, who assigned it to this plaintiff. Evans conveyed the mortgaged premises to Harry W. Mitchell ; Mitchell to Edward P. Cone ; Cone to Jane L. Eaton ; and Eaton to Daniel A. Sanborn. In none of these deeds did the grantee assume to pay the mortgage. Daniel A. Sanborn conveyed the premises to the appellant Har- riet B. Turner. " Subject, nevertheless, to the payment of a certain indenture of mortgage, bearing date the 5th day of August, 1873, made and exe- cuted by Charles E. Evans to John W. Eddy, to secure the princi- pal sum of $5,500 and the interest thereon, and recorded in the office of the register of the county of Kings, in liber number 1,166 of mortgages, page twenty-two, on the 9th day of August, A. D. 1873, which mortgage the party hereto of the second part hereby covenants and agrees to assume to pay off and discharge, the same forming part of the consideration thereof having been deducted therefrom." The only question was as to the liability of the appellant for deficiency. The case was tried before John P. Rolfe, referee, who decided in favor of the plaintiff. Edwwrd T. Bwrtlett) for the appellant. N. H. Clement, for the respondent DTKMAN, J. : On the 5th day of August, 1873, the defendant Charles E. Evani made and executed a mortgage upon certain lands and premises, of 80 VROOMAN v. TURNER. SECOND DEPARTMENT, JUNE TERM, 1876. which he was then the owner, in the city of Brooklyn, to secure the payment of $5,500. After the execution and recording of this mortgage, the premises were sold and conveyed by the said Charles E. Evans, and came by several mesne conveyances to one Daniel A. Sanborn. In neither of the deeds of conveyance did the grantees assume the payment of the mortgage. On the 6th day of April, 1875, Daniel A. Sanborn conveyed the same premises to Harriet B. Turner, the defendant, who was then a married woman. This deed conveys the premises subject to the mortgage, and contains the following clause : " which mortgage the party hereto, of the second part, hereby covenants and agrees to assume, pay off, and discharge, the same forming a part of the consideration thereof, having been deducted therefrom." This deed was accepted and recorded. This action is now commenced to foreclose the mortgage, and charge the defendant Harriet B. Turner with the payment of any deficiency, provided the proceeds of the sale shall be insufficient to pay the mortgage. Judgment has been rendered in favor of the plaintiff for the foreclosure of the mortgage, and for deficiency against the defendant Harriet B. Turner, who has appealed from the judgment. It is now claimed that the portion of the judgment which holds the defendant Harriet B. Turner personally liable for deficiency is obnoxious to the principles of law enunciated by the Court of Appeals in the case of Trotter v. Hughes (12 N. Y., 74). It is claimed that that case decided that where, as in this case, the grantor in a conveyance is not personally liable to the holder oi the mortgage to pay the same, his grantee is not liable, although assuming, in terms, to pay it. What the precise state of the law is in this State which is to govern this case, it is not very easy to determine. Trotter v. Hughes seems to decide all that is claimed for it. The old doctrine of the Court of Chancery was, that where a grantee in a deed assumed the payment of a mortgage, he became thereupon the principal debtor, and the mortgagee occupied the position of surety, and the mortgagee was permitted to resort to the grantee to recover the deficiency after applying the proceeds of the sale by virtue of the doctrine of subrogation in equity, by which the cred- VROOMAN v. TURNER. 81 SECOND DEPARTMENT, JUNE TERM, 1876. itor was entitled to all the collateral securities which the debtor had obtained to reinforce the primary obligation, and Trotter v. Hughes seems, by the reasoning of the opinion, to have been decided upon ;hat principle. We cannot, however, overlook the fact that in that very case the defendant Hughes had not undertaken personally to pay the mortgage at all, and the decision would have been fully as satisfactory if it had been placed npon that ground. Upon the questions which were discussed in Trotter v. Hughes there was a good deal of conflict of judicial opinion, until the case of Lawrence v. Fox came before the Court of Appeals and directly involved the question. In that case one Holly owed the plaintiff $300 ; he loaned the defendant $300, and told him at the same time that he owed the plaintiff that amount, and the defendant promised Holly that he would pay that amount to the plaintiff the next day. The plaintiff recovered in the court below, and the Court of Appeals affirmed the judgment, and placed its decision on the broad ground that if one person makes a promise to another for the benefit of a third person, that third person may maintain an action on the prom- ise, although he was not privy to the consideration. This was followed by the case of Burr v. Beers (24 N. Y., 178), where it was held, in unqualified terms, that a mortgagee may maintain a personal action against a grantee of the mortgaged premises who has assumed to pay the incumbrance. As before observed, the case of Trotter v. Hughes would be more satisfactory if the decision in favor of the defendant had been placed upon the ground that the defendant had not assumed the payment of the mortgage and had not become liable to pay it in any way, and the action could not be main- tained against him for that reason. But whatever else may be said about that case, it cannot be considered as authority since the case of Burr v. Beers, where the Court of Appeals broke entirely away from the old equitable doctrine, which has been alluded to, and placed the case upon the broad principle that if one person make a promise to another for the benefit of a third person, that third person may maintain an action upon the promise. As this must be taken for the law of this State to-day, it certainly can make no difference in this case whether Daniel A. Sanborn was personally liable to pay the mortgage in question or HUN VOL. VIII. 11 82 VROOMAN v. TURNER. SECOND DEPARTMENT, JUNE TERM, 1876. not. As in the case of Burr v. Beers, so in this case, the amonnt dgment, the constable's return giving him jurisdiction of the person of the defendant. Held, further, that the County Court had no power, on motion, to se*. aside the transcript and vacate the judgment; that the remedy of the defendmt was by appeal. APPEAL from an order of the County Court of King.* county, entered on a motion to vacate the docket of a judgment rendered by a justice of the peace of the town of New Lots, made upon a transcript thereof filed in the clerk's office of said county, and to 6et aside the execution issued thereon. The summons was issued in a civil action by James H. Spencer, justice of the peace, in the town of New Lots, Kings county, and was served by a constable on the defendant, in the city of Brooklyn, in said county, where defendant resided. Judgment was entered by default, a transcript thereof filed and the judgment docketed gainst the defendant in the Kings county clerk's offic*, And exe cation issued thereon. D. W. Guernsey, for the appellants. James Troy, for the respondent. 86 DOUGLASS v. KEILLY. SECOND DEPARTMENT, JUNE TERM, 1876. DYKMAN, J. : On the 27th day of July, 1875, the plaintiffs were residents of the town of New Lots, in Kings county, and on that day they applied to James H. Spencer, a justice of the peace of that town, for a summons in a civil action against the defendant, who was a resident of the city of Brooklyn. The summons was issued in the usual form and manner, and was made returnable before the said justice, at the town of New Lots, and was personally served on the defendant in the city of Brooklyn, by a constable of the same town of New Lots ; on the 3d day of August, 1875, the return day of the summons, it was returned by the said constable personally served on the defendant. The defendant did not appear, and on proof of the claim the jus- tice rendered judgment against the defendant for twenty-nine dol- lars and five cents. The justice issued a transcript of the said judgment, which was filed in the office of the county clerk of Kings county on the 27th day of August, 1875, and judgment was docketed thereon, and an execution issued to the sheriff of Kings county. Upon an affidavit setting forth substantially these facts, a motion was made before the county judge of Kings county to set aside the said transcript, judgment and execution. This motion was granted and the case now comes before us on appeal from that order. This order is now claimed to be proper and legal, on the ground that the justice of the peace who issued the summons acquired no jurisdiction over the person of the defendant. This claim is founded upon the provision in the Laws of 1850 (chap. 102, 1 6), that " no justice of the peace other than the police justice/ 1 elected in the city of Brooklyn shall have or exercise any civil 01 criminal jurisdiction in said city." We think this provision of the statute has no applicability to the present case. The justice of the peace in this case has exercised no jurisdiction in the city of Brooklyn. He simply issued a summons in a civil action in the town of New Lots, out of the city, and delivered it to a constable for service, and upon the proper return of persona" service proceeded with the case in his own town, and entered judg ment in the action. GALLAHER v. VOUGHT. 87 SECOND DEPARTMENT, JUNE TERM, 1876. The constable's return gave the justice jurisdiction of the person of the defendant, and there is no claim that his subsequent pro- ceedings were irregular. Certainly, it cannot be pretended that the constable had no power to serve the summons on the defend ant in the city of Brooklyn. The provision of the statute was intended to give exclusive juris- diction to the police justices and the justices elected in the city of Brooklyn to hold courts in the city of Brooklyn, and not to take away the general jurisdiction of the justices of the peace of the county to try transitory actions within their jurisdiction and hold their courts in their own towns. (Blatchley v. Moser, 15 "Wend., 218.) "We also think that the county judge had no power to set aside the transcript and vacate the judgment on motion, and that the remedy of the defendant, if he had any, was by appeal. (N. Y. and Erie R. R. Co. v. Purdy, 18 Barb., 574.) The order of the county court should be reversed with costs and disbursements. Present BARNARD, P. J., GILBERT and DYKMAN, J J. Order of county court reversed with costs and disbursements. THEODORE H. GALLAHER, APPELLANT, v. PELL S. 0. VOUGHT, RESPONDENT. Services between relatives action for degree of consanguinity necessary to . SOLOMON DECK AND OTHERS, RESPONDENTS. Negligence of administratrix, in keeping money of the estate what is. A n administratrix kept a large amount of money (the collections from the sales of goods in a store and .of notes and accounts of the intestate), in a trunk in a bedroom occupied by her crippled son, being one of the rooms occupied by her family adjoining the store. Part of such collections had been kept there over a year. The nearest bank was twelve miles from where she lived. The money was stolen. Held, that had the money been only a portion of the estate lately collected, and had the rest been deposited in bank, she might have been held authorized to keep the same where she did, until a proper opportunity to deposit it in the bank occurred; but as the whole, or nearly all, the fund bad been allowed to remain in such an insecure place for nearly a year, when it was finally stolen, it was such a violation of the ordinary laws of prudence as rx>n- stituted negligence for which she was liable APPEAL from a decree of the surrogate of the county of Steuben, on a final accounting, refusing to allow the administratrix credit for moneys of the estate stolen, on account of negligence. The defendants were creditors of the estate, which was insolvent. The appellant is the widow of one A. Cornwell and was appointed the administratrix of his estate, April 16, 1872. Deceased was a merchant at Woodhull. The estate consisted of a stock of goods in the store there, besides accounts and notes. The administratrix, who was an old lady, employed her son to sell the goods at retail and collect the accounts. She, with her family, occupied rooms adjoining the store, and kept the money collected, in a trunk in a bed -room occupied by her crippled son. On the 20th of March, 1873, the sum of about $1,660 belonging to the estate, was stolec from said trunk and never recovered. CORNWELL 0. DECK. 123 FOURTH DEPARTMENT, JUNE TERM, 1876. The nearest bank was twelve miles from where she lived, at which her husband had had a bank book, and where he used to deposit money, and draw checks. The place of deposit of the money was known to several persons, and the money, or a portion of it, had been kept there for nearly a year. J. W. Dininny, for the appellant. G. H. McMaster, for the respondents. E. DAKWIN SMITH, J. : Whether the appellant is liable for the loss of the $1,660, money belonging to the estate and stolen from a trunk in her possession, is the question presented upon this appeal. In Chambersburg Savings Bank v. MoLellan (76 Penn., 203), the rule is stated by MUKCUJK, J., in respect to the liability of trustees, as follows: " It is well settled that a trustee shall not be surcharged by a court of equity, for a loss which has occurred in case he has exercised common skill, common prudence and com- mon caution, but for supine negligence or willful default, he shall be held responsible." What is supine negligence must depend upon the nature of the property to a great extent. While it might not be negligent to leave furniture and ordinary personal property in any room in an occupied dwelling-house, it would certainly be very improper to leave money or jewels in such a place, unless they were secured in an iron safe. In 1 Games' Cases in Error (Furman v. Coe, page 96, decided in 1804), it was held, that the executor was not liable where a body of men broke into his house, and by force carried away funds of the estate. The fund was acquired during the revolutionary war when the country was distracted, and armed bodies of men were roaming about. It does not appear that there was any bank or safe place of deposit near. The money was kept in a strong chest in an upper chamber, and no question was raised that the executor was negligent. The court held that under the circumstances he was not liable. The trustee at the present time, when banks and places of safe deposit so largely abound, would, probably, under the same cir curnstances, be held liable for negligence, because a man of com 124 CORNWELL v. DECK. FOURTH DEPARTMENT, JUNE TERM, 1876. mon prudence and acting with common caution would not retain the custody of money and valuables liable to be stolen in such a place, when he could easily deposit them in a place of safety. It is repeatedly held that if a trustee, in the exercise of his best judg- ment, deposits money in a bank of good repute, that he is not liable in the event of the failure of the bank. In Wharton on Negligence ( 519, and cases there cited), it is held that a guardian having funds of his ward should not keep it in his house, but deposit it in bank. An executor or administrator is entitled to compensa- tion for his services in taking care of the estate, and held to a stricter accountability than a trustee without compensation. In Litchfield v. White (3 Seld., 438), it is held that an assignee, under a voluntary assignment for the benefit of creditors, being entitled to a compensation, is chargeable with the care of a provi- dent owner and liable for a loss occasioned by ordinary negligence. (See also 9 Alb. Law Journal, 423, and cases cited.) The admin- istratrix in this case is an old lady unaccustomed to business, which facts go to palliate what would in an ordinary business man be gross negligence, yet I cannot see why having assumed this trust for which she is compensated, and having gone on and sold the property and collected the debts due the estate, she should not be held to the exercise of at least common prudence. It appears that this money was kept in a place known to several persons. The place, to be sure, was a bed-room occupied by her sick son, but it was, nevertheless, a very insecure depository for such a sum of money, and presented a constant temptation to take it even to the members of her own family. Her husband had kept a bank account, of which she was aware. Although the bank was some twelve miles off, he had deemed it proper to deposit in it there, and she could and should have done the same. Had this money been only a portion of the estate lately collected, and had the rest been deposited in bank, she might be held authorized to keep the same where she did, until a proper opportunity to deposit in bank occurred, but the whole, or nearly all this fund had been allowed to remain in this insecure place for nearly a year, until it was finally stolen. If executors and adminstrators are permitted to violate the most ordinary laws of prudence in such a manner, it will open the door ALIGER v. KEELER. 125 FOURTH DEPARTMENT, JUNE TERM, 1876. for innumerable frauds, and place creditors and other persons inter- ested in trust funds at the mercy of careless and reckless trustees. I think the decree or order should be affirmed. Present MULLIN, P. J., SMITH and TALOOTT, JJ Decree of surrogate affirmed, with costs. WILLIAM ALIG-ER, RESPONDENT, v. EBENEZER KEELEB, APPELLANT. Heeeiptor right of has a lien for his fees. A constable levied on certain property under a judgment in favor of the defend- ant, against the plaintiff, and committed the property to the defendant as a receiptor. Held, that the latter acquired a valid lien upon the property, for his just and lawful charges as such; that payment of the judgment to the sheriff, upon the judgment of affirmance rendered upon appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees. APPEAL from a judgment in favor of the plaintitf and against the defendant, upon the report of a referee. On the 11 th day of December, 1871, the defendant, Ebenezer Keeler, recovered a judgment, before a justice of the peace, against the plaintiff, William Aliger, and one Clarissa Yan Vorhis for twenty-nine dollars. On the 12th day of December, 1871, an execution was issued upon said judgment against the property of the defendants Aliger and Van Vorhis, and on the 26th day of the same month it was levied on the cattle for the conversion of which this action was brought. The constable took possession of the property levied on and delivered the same to Ebenezer Keeler, the defendant in this action, as a receiptor thereof. The constable advertised the property for sale, but the sale was .stayed by an appeal to the County Court and by the giving of an undertaking. The judgment of the justice was affirmed by the County Court on the 29th day of September, 1873 ; and on the 30th day of the same month an execution was issued, upon the judgment of the County Court, to the sheriff of Steuben county. 126 AL1GER v. KEELER. FOT-RTH DEPARTMENT, JUKE TERM, 1876. At some time thereafter the amount of that execution was paid to the sheriff. On the 6th day of January, 1874, the cattle in question still remained in the possession of the defendant Keeler, as receiptor, when Clarissa Yan Vorhis, one of the judgment debtors in the court below, transferred an interest in the same to William Aliger, the other judgment debtor. On the seventh day of January a demand of the cattle was made, and the receiptor refused to give them up unless the con- stable's fees and expenses are paid, and he was paid for their keeping. On the tenth day of the same month this action was brought to recover the value of the cattle, on the ground that they had been converted by the receiptor. In his answer the defendant claimed his right to hold the prop- erty, as receiptor, until the costs and expenses of the taking and keeping the cattle were paid, and claimed to recover the amount thereof in this action. Butler (& Searl for the appellant. A. M. Sj>ooner, for the respondent. E. DARWIN SMITH, J. : The constable levied upon the property in question under a valid execution issued upon a valid judgment. It was his duty to hold and take care of the property till the judgment and his fees were discharged. He could, as he did, com- mit the property to the defendant's custody to hold as a receiptor, and the latter, under the constable, acquired a valid lien upon the property for his just and lawful charges as such receiptor. The payment of the judgment to the plaintiff or to the sheriff, upon the judgment rendered upon the appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees. Judgment should have been given upon this ground for the defendant, and it should now be reversed. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment reversed and new trial granted, costs to abide erent. LE CLARE v. STEWART. 127 FOTJBTH DEPARTMENT, JUNE TERM, 1876. ELIZA LE CLARE, RESPONDENT, v. JOHN" A. STEWART, SUBVIVING ADMINISTBATOB, ETC., OF LEWIS M. SHERWOOD, APPELLANT. Witness neact of kin incompetent, though catted to testify against his interest Uode, The testimony of one who is next of kin and interested in the event of an action, although not a party thereto, as to conversations with defendant's intes- tate, whether it be favorable to or against his interest, is inadmissible, under section 399 of the Code. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. On the hearing before the referee, he admitted the testimony of one Benjamin Sherwood, a son of intestate's brother, called as a witness on the part of the plaintiff to testify to a personal transaction with the intestate. The interest of the witness was against the plaintiff as he was entitled, as next of kin, to a share of the personal property, and if the claim of the plaintiff was defeated his share would be increased. O. H. McMaster, for the appellant. William Rumsey^ for the respondent. MULLIN, P. J. : We cannot interfere with the referee's findings of fact in this case. The evidence was conflicting, and although we would have been better satisfied had the findings been the other way, yet the referee having the witnesses before him, and hence a much better opportunity of judging of their veracity, has credited the story of the plaintiff's witnesses and we cannot say that he ought not to have done so. We must reverse the judgment, however, by reason of the admis- sion of the evidence of Benjamin Sherwood, one of the next of kin of the defendant's intestate. The intestate died leaving a wife, but no father, mother or children. 128 SMITH t>. REYNOLDS. FOURTH DEPARTMENT, JUNE TERM, 1876. The witness was his nephew, and hence one of his next of kin nd entitled to share in his estate. This action was brought tc reach and lessen the assets which would go to the next of kin. The witness was therefore interested in the event of the suit, and Sy section 399 of the Code such a person is prohibited from being examined as a witness in such a suit. At common law this witness would have been competent, being called to testify against his interest. But the section cited allows of no inquiry into the nature or extent of the interest. It says he shall not be examined. To admit the witness is to override the statute. The judgment must be reversed and new trial granted, costs to abide the event. Present MTTLLIN, P. J., SMITH and TALCOTT, JJ. Judgment reversed and new trial granted before another referee ; costs to abide event. MAKY SMITH, KESPONDENT, v. ELIAS .REYNOLDS AXL OTHEBS, APPELLANTS. Intoxicating liquors furnished by bartender without knowledge of, and against orders of employers Liability of employers chapter 646, Laws of 1873. The supplying of liquor to a party who is injured afterwards, by reason thereof, although done by the bartender without the knowledge or authority of his employers, and against their instructions, makes the employers liable, under chapter 646 of the Laws of 1873, for the injuries sustained.* APPEAL from a judgment in favor of the plaintiffs, entered on the verdict of a jury. The defendants were the landlords and proprietors of a hotel at Hinsdale, in the county of Cattaraugus, known as the Glade House. Henry Smith, the plaintiff's husband, who had for sev- eral years been in the habit of frequent intoxication, drank at the defendants' bar several times on the evening of July 8, 1874, and ieft the hotel at a late hour that evening in an intoxicated state * See post, p. 148, and ante, p. 112. SMITH v. REYNOLDS. 129 FotrRTH DEPARTMENT, JUNE TERM, 1876. and started toward home. His house was at some distance from the hotel and the village, and between the house and the hotel ran the track of the Buffalo, New York and Philadelphia railroad. The next that was seen of him he was lying on the track, about six o'clock the next morning, in a condition of stupefaction, caused by such intoxication, and was there struck by a passing train and received injuries from which he died. Although his habits were bad, he provided for his family, consisting of his wife and two chil- dren. The defendants raised, among others, the objection that the action under the act chapter 646, Laws of 1873, could not be main- tained by the widow. Cary & Jewell, for the appellants. D. H. Boltes, for the respondent. MTJLLIN, P. J. : The defendants kept a tavern at Hinsdale in the county of Ca^ taraugus. They had a license from the proper authorities to sell liquor to be drank on their premises. Their bartender sold liquor to the plaintiff's husband, an intemperate man, in July, 1874, by means of which, in whole or in part, he became intoxicated and lay down or fell down on the track of the Buffalo, New York and Philadel- phia Railroad along which he passed on going from the tavern to his house. He was struck by the cars and was injured, and in con- sequence of the injuries there and then received he died, whereby, it is claimed, the plaintiff was deprived of support and is, for that reason, entitled to maintain an action against the defendants for the damages sustained by her, under section 1 of chapter 646 of the Laws of 1873. In Jacknon v. Brookins (5 Hun, 530), it was held, that a wiie could maintain an action for loss of support resulting from the death of her husband, against the person who sold him liquor, in conse- quence of drinking which, he became intoxicated, and was killed. No sufficient reason is suggested why we should abandon the doctrine of that case ; on the contrary, we are satisfied that the con- struction we have given to the statute is the only one that, can give HUN VOL. VIII. 17 180 SMITH w. REYNOLDS. FOURTH DEPARTMENT, JUNK TERM, 1876. full effect to the intentions of the legislature, and protect the com- munity against the wrongs done by dealers in intoxicating liquors in selling them to persons known to be intoxicated, or in quantities that they must know will produce drunkenness with its train of evils, not only to the one who drinks it but all connected with him, as well as to the community in which he lives. The only question I propose to consider is the refusal of the judge at the Circuit, to charge the jury that if they found from the evidence that the liquor alleged to have been delivered to deceased was delivered by defendants' bartender without the knowl- edge of the defendants, and after defendants had directed him not to sell or give away any liquor to the deceased, then the plaintiff cannot recover, as requested by the defendants' counsel. No principle is better settled in the law relating to the rights and liabilities of principal and agent, than that the principal is lia- ble to third persons for the misfeasance, negligence and omissions of the agent in the business of his agency. (Story on Agency, 308 ; Paley's Agency, 294.) In the note at the foot of the page cited, it is said: " The general rule is that the principal is responsi- ble, civilly, for the acts of his agent, but not criminally, uniess done under his express authority." In note 1, at the foot of page 295, it is said, that " the rule tnat the master is liable for the wrongful acts of his servants, is not confined to domestic servants, but has a more extended operation. All such as act for, do the work of, serve another, are, in contem- plation of law, his servants and fall under the rule. * * * "It makes no difference whether those servants are paid by the job or by the year or by the day; a third person has no concern with the terms of their private agreements. The loss to him is the same, let the agreements be either way ; nor does it make any dif- ference whether the person for whom the work is done be present or absent. If he expects to be absent, more care should be used in making the selection. Nor is any distinction taken when the work is of such a nature that the owner cannot be expected to do it him self and must necessarily employ others to do it. In all these cases the person for whom the work is done is liable, if a third person is injured." In note 1, to page 302 of the work, it is said : " As a general ONTHANK v. LAKE SHORE & M. S. R. R. CO. 131 FOURTH DEPARTMENT, JUNE TERM, 1876. rule, a master is liable to answer in a civil suit for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in the master's service * * * and it makes no difference that the master did not authorize or even know of the servant's act or neglect, for even if he disapproved of or forbade it, he is equally liable if the act be done in the course of the ser vant's employment." In view of these authorities, and others which might be cited, the request to charge was properly refused. The judgment must be affirmed. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment affirmed. WILLIAM D. ONTHANK, APPELLANT, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY, RESPONDENT. Easement Grant of use qf water amount not defined easement limited to amount first taken. A grant was made to use certain water and lay down pipes therefor, but the size of the pipes and the amount of water to be taken were not defined. Pipes were laid, and the water that they could supply used for a number of years. Held, that this limited the extent of the grant, and the grantee was liable for damages occasioned by the diversion of a greater quantity of water than origi- nally used, caused by taking up such pipes and replacing them by larger ones. The grant being of an easement, the occupation under it must be regarded as the exercise of the right granted, applying the same principles to easements of water as of land. MOTION by plaintiff for a new trial, made on exceptions ordered to be heard in the first instance at the General Term. The plaintiff was the owner of a farm of forty-five acres, through which the defendant's road passed. He raised small fruits, and was interested in the defendant's keeping open a station at Port- land, about half a mile from his residence. This station had been discontinued two months, when in 1863 the plaintiff and others made an effort to induce the company to ONTHANK v. LAKE SHORE & M. S. R. R. CO. FOURTH DEPARTMENT, JUNE TERM, 1876. reopen it, and for the purpose of promoting that object executed to the company a grant to lay water pipes across his land, and Samuel Brown also deeded them the right to take the water from his spring to their tanks at Portland station. The company continued in good faith on their part to so use the water until in 1871, when they enlarged their reservoir, put in larger pipes and conducted nearly all the water to Brocton station, which is over a mile east from Portland station, and there used it for their own purposes and introduced it into private houses, and discontinued Portland station. This was all done against the remonstrance of the plaintiff. The water from the spring formed what is known as Deer Lick brook, which crossed plaintiff's farm, and had always been a durable stream. While the first set of pipes were in, and the water was only taken to Portland station, a small quantity was used, and the brook continued to furnish an adequate supply for the plaintiff's use. After the new pipes were in, and the water taken to Brocton for private and public purposes, the water ceased to flow in the stream, and the plaintiff was deprived of its use. The action was brought to recover damages for an alleged tres- pass upon the plaintiff's land, in digging up the soil, laying down pipe, and conducting water therein across said land wrongfully. Also, for diverting the water of a spring on an adjoining farm into such pipes. The court granted a nonsuit. H. C. Kingsbury, for the appellant. Laning & Willett, for the respondent. MULLIN, P. J. : In May, 1863, Samuel Brown owned a piece of land in the town of Portland, in the county of Ohautauqua, on which were several springs that discharged their water into a small brook; that after flowing over the lands of divers persons emptied into a lake near by. The Buffalo and State Line Railroad Company had erected, or was about to erect, a station for its use on the line of its read called the Portland station, and in order to supply its engines, etc.. ONTHANK v. LAKE SHORE & M. S. R. R. CO. 133 FOURTH DEPARTMENT, JUNE TERM, 1876. with water at said station purchased from said Brown the right to divert the water of said springs over his lands to be taken to said station in pipes, and the same was conveyed to the company by quit-claim deed. On the day of the date of said last mentioned deed the railroad company purchased, for a valuable consideration, of the plaintiff the right to lay pipes on his land for the purpose of conveying the water from where the pipes on Brown's land terminated to the station, and also the right to enter on said land to repair said pipes. The railroad company constructed on Brown's land a resei . .>*r in which to collect the water of said springs and excavated a trench on the lands of said Brown and the plaintiff, laid pipes therein and conducted the water to said station. The defendant subsequently acquired the right so aforesaid granted by the plaintiff and Brown, and is still the rightful owner of the same. In 1871 the defendant discontinued the Portland station and erected one called the Brocton station at a point about a mile east of the Portland station, and that station has been used by the defendant ever since. The pipe which was used from 1863 until 1871 was about two and a quarter inches in diameter, and rust had accumulated on it to such an extent as to hinder, materially, the flow of water through it. In order to obtain a larger supply of water, the defendant caused to be taken up the pipe first laid and in its place put down new pipe four inches in diameter, from the reservoir to the land of defendant, and from that line to the station it was three inches in diameter. The new pipe conveyed considerably more water than the former, so much more that in a dry season it carried off all the water that would otherwise have flowed into the brook, at which plaintiff was accustomed to water his cattle. The water, when taken to the station, was used by the defendant for its own purposes and by others living near the station. For the damages sustained by the plaintiff, by entering on his land and diverting the water from the brook and conducting it to Brocton station this action was brought. The defendant justified this entry and diversion of the water under the grants from Brown and the plaintiff. 134 ONTHANK v. LAKE SHORE r his COUGHLIN v. N. Y. C. & H. R. R. R. CO. 139 FOURTH DEPARTMENT, JUNE TERM, 1876. costs until the recovery, by his client, of a judgment on the verdict. (Shank v. Shoemaker, 18 N". Y., 489 ; Brown v. Comstock, 10 Barb., 67; Sweet v. Bartlett, 4 Sandf.,661.) But the court will protect the attorney against a fraudulent or collusive settlement between his client and the adverse party by setting aside any release that may have been given, or where the right to costs has not been perfected by reason of there being no recovery entitling the attorney to his costs, the attorney will be permitted to proceed in the action as if no release had been given until the costs are adjusted. (Rasquin v. Knickerbocker Stage Go., 12 Abb. Pr., 324 ; ShacUeton v. Hart, 12 Abb. Pr., 325, note.) As a general rule, the attorney has enforced his lien or protected himself against collusive settlements before an actual lieu attached, by motion for leave to proceed with the action, when that is neces- sary, and the client will not be permitted to prevent him. In Martin v. Hawks (15 Johns., 405), an action was brought by the plaintiff's attorney, in the plaintiff's name, for the escape of the defendant, in an action prosecuted by the plaintiffs against one Robinson, against whom an action for assault and battery had been brought and a recovery had of six cents damages and for seventy- seven dollars costs. A ca. sa. had been issued and the defendant in that suit committed thereon. After the commitment, and on the same day, the plaintiff released the defendant Robinson, and directed the sheriff to discharge him from the arrest on the ca. sa., as he had received in full the debt and costs. The sheriff' accordingly discharged the defendant, and it was for this escape thus allowed the action was brought. On the trial the plaintiff's counsel offered to prove that the judg- ment against Robinson, with the exception of six cents, belonged to Jordan, the attorney for the plaintiff, as the taxable costs; that the deputy sheriff, to whom the ca. sa. was delivered, was notified of the ownership of the judgment, and was forbidden to pay to plaintiff, ind was required to pay to the attorney. The evidence was rejected and the plaintiff nonsuited. The General Term granted a new trial, holding that the attorney had * lien upon the original judgment, which the court would protect and enforce, and as the remedy of the attorney could only be 140 COUQHLIN v. N. Y. C. & H. R. R. R. CO. POTJRTH DEPARTMENT, JUXE TERM, 1876. enforced by holding him entitled to prosecute the sheriff for the escape, he was entitled to prosecute the suit to judgment. The difference between the facts in this case and that cited do not impair the attorney's right to relief. In this case the attorney had no lien for his costs; in that he had ; but the right of the attorney to be protected against collusive settlements that deprive him of his costs is just as much entitled to protection, as it would be against a similar fraud to defeat his lien on the verdict or judgment. The difference is in the manner the remedy is to be applied, rather than in the remedy itself. . In this case the attorney requested of the court permission to make proof of the cause of action in favor of his client, in order that he (the attorney) might establish the amount of compensation to which he was entitled. In that case the attorney was permitted to prosecute a new and independent action to obtain against a third party the amount of his costs in such former action, which he had lost by the fraud of his client and the misconduct of the sheriff. If the action for the escape could be prosecuted by the attorney, I can perceive no reason why the attorney may not maintain this action. In both the attorney had an interest in the subject of the action for his costs, which the court would protect against fraud u- ulent and collusive settlements and releases, whether made before or after verdict or judgment. If the fraudulent release is given or the fraudulent settlement made before verdict, and the case is one in which the damages in the case must be ascertained before the right of the attorney to costs is determined, the relief he is entitled to is to prosecute the action to judgment, or, when that cannot be done, to prosecute a new action against whoever may be legally liable to redress the wrong done him. In this case the attorney must have the damages in the action assessed, before the costs to which he is entitled, by virtue of the contract between him and his client, can be ascertained. It is not necessary to inquire whether he could maintain another action against those engaged in the fraudulent attempt to deprive him of his costs. This suit is pending and another is wholly unnecessary. It would be of very little advantage to set aside the release, that would take from the defendant the protection which it affords it COUGHLIN v. N. Y. C. & H. R. R. R. CO. 141 FOURTH DEPARTMENT, JUNE TERM, 1876. against the plaintiff. This would be both unnecessary and unjust The same result is obtained by holding it void as against the attor- ney and leaving him to go on in the action as far as is necessary to the protection of his right. The referee finds that the settlement was made in fraud of the rights of the attorneys. It would be a disgrace to the administration of justice if the courts could not protect a party thus defrauded against the effect of such fraudulent arrangements. The respondent's counsel insists that the referee could not try the question as to whether the release was obtained fraudulently, as that was not one of the issues referred to him. The release was set up as a defense in the answer. By the Code the allegations in the answer are to be deemed denied unless they constitute a coun- ter-claim, in which case a reply must be put in. It is, therefore, the right of a plaintiff to prove on the trial any matter that constitutes an answer to the matter set up by the defendant as a defense to the cause of action. That the release was obtained by fraud was a perfect answer tc that instrument as a defense, if it was established by the evidence. If the fraud is established it will not affect the rights of the defend- ant under it, except so far as necessary to protect the attorney. It was the duty of the referee, having found the release to be fraudulent, to have complied with the request of the plaintiff's attorneys and ascertained the damages sustained by the plaintiff, and to have given judgment against the defendant for one-half the amount thereof. The judgment must be reversed and a new trial ordered, costs to abide the event. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment reversed and new trial granted before another referee, costs to abide event. 142 WAGGONER v. MILLINGTON. FOURTH DEPARTMENT, JUNK TERM, 1876. FRANK W. WAGGONER AND JAMES W. EAGER, REBPOND- ENTB, v. HARRIET E. MILLINGTON, APPELLANT. Married woman note by, charging separate estate, though for debt of husband, valid blank place of payment, can be fUed in by holder Practice immaterial aver- ments. A married woman executed and delivered the following note: " $60.00. SYRACUSE, N. Y., February 26, 1875. Six months after date I promise to pay to the order of Waggoner & Eager sixty dollars at .value received, with use. And for value received, I hereby agree that the above sum shall be paid out of my sep- arate estate, and make the same a charge thereon. (Signed) HARRIET E. MILLINGTON." Held, that the note was not avoided by filling in after the word " at," in a blank left for the place of payment, " State Bank of Syracuse, N. Y.," the leaving of such blank giving implied authority to the lawful holder to fill it up by designating a place of payment ; that the body of the note contained a suffi- cient admission that the defendant was possessed of a separate estate. That an allegation in the answer that the note was given for a prior indebtedness of her husband in his own business and for his own benefit, and that she was solicited to sign said note for her husband and did so without any intention of charging her separate estate or knowing that she had done so, following a gen- eral denial of each and every allegation in the complaint " except as herein- after stated and admitted," had the sole legal effect to admit the making of the note, and the qualification of the admission was immaterial. That such allegation constituted no defense to the note. APPEAL from a judgment entered upon the report of a referee in favor of the plaintiffs for $182.05 damages and costs. The action was upon a promissory note made by the defendant, a mar- ried woman, containing this clause: "And for value received, I hereby agree that the above sum shall be paid out of my separate estate, and make the same a charge thereon," and delivered to the plaintiffs to secure an extension of time on a judgment by them against the husband of the defendant. When delivered, the blank for the place of payment was not filled out, but was caused to be done by the plaintiffs, by inserting after the word "at," "State Bank, Syracuse, N. Y.," without the knowledge or express consent of the defendant, but in good faith and without any actual fraudu lent intent on the part of the plaintiffs. WAGGONER v. MILLINGTON. 143 FOURTH DEPARTMENT, JUNE TERM, 1876. The answer first denied eacli and every allegation of the com- plaint " except as hereinafter stated and admitted." And as a far- ther answer and third defense, alleged ''that the note mentioned and described in the complaint, was not given by her in any busi- ness of her own, separate or otherwise, nor did it relate to, or in any way benefit, any estate of hers, separate or otherwise, but was given for a prior indebtedness of Philander Millington (her hus- band), " in his own business and for his own benefit, and this defendant was solicited to sign said note as surety for the said Philander, and did so without any intention of charging her sepa- rate estate, or knowing that she had done so." W. Sanders, for the appellant. Baldwin <& Hahn, for the respondents. TAI.COTT, J. : This is an appeal from a judgment on the report of a referee. The action was on a note made by the defendant, a married woman, to secure a debt due from her husband. The note con- tained a clause distinctly charging the separate estate of the defendant with the payment of the debt. The referee correctly held, that the fact that the defendant signed the note was admitted by the answer. The answer com- menced with a general denial of each and every allegation in the complaint contained, "except as hereinafter stated and admitted." The defendant for a third defense alleges that the note " was given for a prior indebtedness of Philander Millington in his own business and for his own benefit, and this defendant was solicited to sign said note for said Philander, and did so without any inten- tion of charging her separate estate or knowing that she had done so." The third answer contains no defense to the action, and its sole office in legal effect is to admit the making of the note. The gen- eral denial is qualified by the words " except as hereinafter stated and admitted." There appears to be no admission in the answer on any subject except that the defendant made the note, and the qualification of the denial is senseless except it be construed tc refer to the making of the note. 144 CRAIG v. SWINERTON. FOURTH DEPARTMENT, JUNE TERM, 1876. If ambiguous, the pleading is to be construed most strongly against the pleader. The note was not avoided by the filling of the blank after the word " at," left for inserting the place of payment. The leaving of this blank gave implied authority to the lawful holder to fill it up by designating a place of payment. (Kitchen v. Place, 41 Barb., 465 ; Redlich v. Doll, 54 N. Y., 234.) The body of the note contained a sufficient admission that the defend- ant was possessed of a separate estate. The court itself corrected the error, if any, in putting its refusal to adjourn the case on the ground that the evidence proposed to be given by the defendant was inadmissible under the pleadings, by withdrawing the refusal to adjourn and adjourning for four days to give defendant an opportunity to produce the evidence, and notifying the defendant thereof. At the expiration of that time the defendant should have produced the evidence or shown cause for a further adjourn- ment. The judgment must be affirmed. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment affirmed. HENRY H. CRAIG AND OTHERS, RESPONDENTS, v. JOHN M. SWINERTON, IMPLEADED WITH HENRY J.ANES, APPELLANT.* Mechanic? B lien chop. 489, Laws of 1873 materials furnished to vendee in pos- tession under executory contract Oonsent Title of owner of fee not affected when. Chapter 489, Laws of 1873, does not authorize the creation of a lien as against the owner of the legal title to property, in regard to which there is an outstanding executory contract of sale with the vendee in, and entitled to the possession of the land, for materials and labor furnished to the vendee on a building contract made with him, or for his own benefit, unless such labor or supplies are fur nished with the express consent of the owner of the fee of the land. * See Wheeler v. Scofield, 6 Hun, 655. [REP. CEAIG v. SWINERTON. 145 FOURTH DEPARTMENT, JUNE TERM, 1876. APPEAL by the defendant Swinerton from a judgment in favor of the plaintiff, entered upon the report of a referee, and from an order confirming the report and an order denying a motion for a new trial. The action was brought in the Monroe County Court for the foreclosure of a mechanic's lieu under chapter 489, Laws of 1873, and was referred. The notice of lien was filed December 10, 1873, and alleged a claim against Henry Janes for materials " furnished to and used by said Henry Janes, in pursuance of an agreement with him," and that the same were used in erecting " three dwelling-houses and appurtenances on Jennings street," in Irondequoit, and that sixty days have not elapsed since the said materials were furnished. That Janes " has the equitable title and one John M. Swinerton the legal title to said buildings," etc. The notice of foreclosure, after setting forth the claim for materials, contained this clause : " Which materials were furnished to and applied by the said Janes in erecting the three buildings now owned by you, said Swinertou," and was the only allegation relat- ing to Swinerton. Quincy Van Vbor/iis, for the appellant, Swinerton. De L. Crittenden, for the respondent. TALCOTT, J. : This is an action commenced in the County Court of Monroe county to foreclose a mechanic's lien and comes here on an appeal by John M. Swinerton from a judgment rendered on the report of a referee, and from an order confirming the same and from an order denying a new trial in the action. The proceeding was commenced under chapter 489 of the Laws of 1873. The statute provides ( 1). that whoever shall perform any labor in erecting, altering or repairing any house, or who shall furnish any materials therefor with the consent of the owner, being such owner as is in this sec- tion hereinafter described, shall, on filing a certain notice, have a lien for the value of such labor and materials, and upon the lot on which the same shall stand, to the extent of the right, title and interest of the owner of the property, whether owner in fee or ot a less ostate, or whether lessee for a term of years thereafter, 01 Hux VOL. VIII. 19 146 CRAIG t. SWINERTON. FOUBTH DEPARTMENT, JUNE TERM, 1876. vendee in possession under a contract existing at the time of the filing of said notice, or any right, title or interest in real estate Against which an execution at law may now be issued. In this case one Strawbridge was the builder, having contracted with one Henry Janes to erect three houses on some land in the outskirts of Rochester, of which Janes had the possession and control as a vendee under an executory contract of sale. The claimants are lumber dealers who furnished certain lumber, used in the erection of the said houses, upon the order and credit of Janes. It is claimed that the defendant John M. Swinertou held the legal title to the land in question at the time of the filing of the notice of claim in the county clerk's office. The notice, upon the filing of which in the county clerk's office it is claimed that the lien was created, alleges that the lumber was furnished to Henry Janes and in pur- suance of an agreement with him, and that Henry Janes has the equitable title and " one John M. Swinerton, of the city, county and State aforesaid, has the legal title to said buildings, appurte- nances and lots," but contains no intimation that Swinerton had ever consented to the erection of the said buildings, or the furnish- ing of the said lumber by the claimants, or that any claim was made that the interest of Swinerton in the land was in any way liable, or claimed to be liable, for the amount due from Janes to the claimants, or any part thereof. The notice served at the com- mencement of the action in the County Court under section 6, and which, though also called a notice, answers substantially to the ordinary summons and complaint in an action, also sets up the claim as against Janes, whom it styled " former vendee in posses sion," with whom, it alleges, that an agreement for the erection of the buildings and appurtenances was made with Leonard Straw bridge, " who was contractor therefor." This notice, or complaint, also contains a statement that the materials for which the claim ants claim were furnished to and applied by said Henry Janes " in erecting the three buildings now owned by you, said Swiner- ton, situate," etc. This notice, or complaint, also wholly omits to aver any facts which tend to show that the interest of Swinerton in the land was in any way liable or subject to the lien of the plaintiffs by reason of his consent to the furnishing of the lumber, or for any other cause. The sixth section of the act requires that CRAIG v. SWINERTOK 147 FOURTH DEPARTMENT, JUNE TERM, 1876. the notice, by which the action is commenced, should contain " a statement of the facts constituting the claim and the amount thereof, and any other facts material to the case." We think the notice in the action commenced in court at all events, ought to con- tain some allegations, if not expressly asserting, certainly from which it is reasonably to be inferred, that a lien is claimed against the interest of snch as are intended to be made parties defendant in the action. Xo such allegation is contained in either of the notices in this case, and nothing from which it can be inferred that the claimants seek to establish any lien against the vendor's interest, which it is claimed was vested in Swinerton, or that the claimants claim that any such state of facts exist as would authorize the asser- tion of a lien against him. But, however this may be, it may be safely asserted that the legislature did not intend to authorize the creation of a lien as against the owner of the legal title to property, in regard to which there was an outstanding executory contract of sale witli the vendee in, and entitled to the possession of the land, for materials and labor furnished to the vendee on a building con- tract made with him, or for his own benefit, unless the labor or supplies were furnished with the express consent of the owner of the fee of the land. This condition precedent is required in so many words by the statute, and is not so obscured by the verbiage of the act but that it is manifest that it was not intended to create, as against the general owner, a lien by which his property might be confiscated by the acts and indebtedness of another party, and wholly without the consent or interference of the general owner. In this case not only are the two notices referred to destitute of any allegations or suggestions of any facts whereby the claimants would be authorized to create a lien against the interest of the general owner, but it is nowhere asserted that the claimants make any claim against the interest of Swinerton. Moreover, the referee does not, in his report, find that Swinerton had any thing to do with the building contract, or the furnishing of the materials, or that the materials were furnished with the consent of Swinerton. We have carefully examined the evidence given before the referee and fail to find therein the slightest evidence that Swinerton con- sented to the erection of the buildings, or the famishing of mate- rials by the plaintiff, so that we have a judgment by which the 148 MEAD v. STKATTON. FOURTH DEPARTMENT, JDNE TERM, 1876. property of Swinerton is ordered to be sold in consequence of the acts and defaults of another party, not his agent, and without anv. averment or proof by which, under the act, Swinerton's property was in any manner pledged or liable to be sold. It would be very extraordinary if such a judgment could be upheld. The order confirming the report and the order denying a new trial and the judgment in the proceeding are reversed, as against Swiuerton, and a new trial ordered before another referee, costs to bide event as to said Jno. M. Swinerton, defendant. Present MULLIN, P. J., SMITH and TALOOTT, J J. Ordered accordingly. ISABELLA MEAD, RESPONDENT, v. ISAAC J. STRATTON AND MARGARET M. STRATTON", APPELLANTS. Civil damage act chapter 646, Laws of 1873 Recovery of damages against owner permission or knowledge of owner must be proved, not presumed or inferred. A recovery can only be had against the owner of a building where intoxicating liquors are sold, under the clause of chapter 646, Laws of 1873, which pro- vides that " any person or persons owning or renting or permitting the occu- pation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the per- son or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages," upon clear and satisfactory proof establishing the permission to occupy, with knowledge that intoxicating liquors are to be sold therein; and neither the permission or the knowledge can be presumed or inferred. APPEAL from a judgment entered on the verdict of a jury in favor of the plaintiff and against the defendants for $1,151 damages and costs. This action was brought by the plaintiff, who was the wife of Charles Mead, against the defendants, to recover damages sustained by the plaintiff in her means of support by the death of said Charles Mead while intoxicated, and in consequence of such intoxi- cation, produced by liquor sold to said Charles Mead by the defend- ant Isaac J. Stratton. The defendant Margaret M. Stratton is the MEAD v. STRATTON. 149 FOURTH DEPARTMENT, JUNE TERM, 1876. wife of Isaac J. Stratton, and owned and lived with him upon the premises known as the Globe Hotel at Geneseo, premises upon which Isaac J. Stratton kept hotel and sold intoxicating liquors. There was no evidence given on the trial which proved or tended to prove that she had any knowledge that intoxicating liquors were sold on the premises or were to be sold when her husband took possession, except that she lived with him. It appeared that Charles Mead was an industrious laboring man, thirty-seven years of age, residing at York, about five miles from Geneseo ; that after working all day on Saturday, August 8, 1874, he left home in the evening with one McGir and drove to Geneseo with horse and buggy ; attended to some matters of business ; drank intoxicating liquors several times at defendant's hotel ; at one time Stratton handed him the bottle ; became beastly drunk, so that he was helped into his buggy upon their starting for home. In going down the hill from Geneseo, Mead fell over on the dash-board twice, and was helped up on the seat by McGir, who was driving, and held there till they got down the hill. After getting part way across the flats on their way home, McGir had occasion to get out of the buggy, when he handed Mead the lines. The horse started along upon the roacl, and that was the last seen of Mead till he was found in front of his residence, hanging out of the buggy, with his head down against the spokes of the fore wheel, his left hand and arm on the ground, with his knee caught firmly under the foot rest of the buggy, killed by the speed of the horse and the action of the wheel. The plaintiff was entirely dependent upon her husband for her means of support, having no property, and he was industrious and a good provider for his family. They had three daughters, aged respectively thirteen, ten and four years, a boy eight years old, and another daughter born after the father's death and before the trial. S. Hulbardy for the appellants. . WILLIAM G. FARGO, PRESIDENT OF THE AMERICAN EXPRESS COMPANY, RESPONDENT. Evidence Express company proof of signature to receipt of. APPEAL from an order denying a motion for judgment on the verdict of a jury, and granting a motion for a new trial, costs to abide event. The plaintiffs brought this action to recover of the American Express Company, the value of a package of sewing machine attach- ments that they delivered to the company, to be carried to Boston and there delivered to M. J. Palmer on payment of the value of the contents, which was $118.08. The defense was, that on the envelope covering the package given to defendant's agent at Watertown, was a direction in writing to the defendant to deliver to Palmer on receiving $118.08, and the charges for carrying the same, and to reship it if ordered by Palmer ; that the package was offered to Palmer, who directed that it be sent to Waterbury, Connecticut. The defendant's line did not extend to Waterbury, nor into Connecticut. The Adams Express Company had an office at Waterbury, and carried property to and delivered it at that place ; that defendant, after the direction given by Palmer, delivered the parcel to the Adams Express Company, taking its receipt therefor, and thus discharged itself of all liability for the property. On the trial, the plaintiffs proved the delivery of the property to the defendant to deliver to Palmer, at Boston, on payment of the amount specified on the wrapper and the charges, and subsequently, the money not being received, plaintiffs demanded it and it was not paid. The defendant proved the carriage to Boston, tender of the prop- 3rty to Palmer, and the direction by him to send to Waterbnry. A receipt was then put in evidence, signed by the receiving clerk of the Adams Express Company, for the parcel, showing that it was received to be carried by it to Waterbury. The plaintiffs' counsel insisted that the execution of the receipt 176 TOOLEY v. BACON. FOURTH DEPARTMENT, JUNE TERM, 1876. was not proved so as to bind the Adams Express Company, and hence the defendant had failed to show performance of its contract. The court at General Term say : " The proof on that subject wag that it was signed by the clerk of the Adams Company employed to receive and deliver property at its office. He had acted in thai capacity for several years. The witness had never seen him write, but he knew the man, and had seen a large number of receipts signed by him for property delivered to other express companies, and from the knowledge thus acquired believed it to be the agent's signature. This was sufficient proof of the due execution of the receipt. * * * To require each person who delivers property to such an agent to prove the signature to receipts by some person who saw them exe- cuted, would be practically impossible after the lapse of a few days or weeks. If the fact is established to the satisfaction of a jury that the receipt is signed by an agent of the company, held out by it, as having authority to bind it, it is enough, however that fact may be proved, if proved by legal evidence." McMa/rtin <& Williams, for the appellants Edmund B. Wynn* for the respondent. Opinion by MULLIN, P. J Present MULLIN, P. J., SMITH and TALOOTT, JJ. Order affirmed. JEREMIAH TOOLEY, APPELLANT, v. CHLOE G. BACON, AS ADMINISTRATRIX OF THB ESTATE OF CHARLES C. BACON", DECEASED. Party to transaction cannot testify at to intention with, which act was done at against the legal representatives of other party Code, 399. APPEAL from a judgment, entered upon the report of a referee, dismissing the plaintiff's complaint. The action was brought to recover of Charles C. Bacon the sum of $5,847 and interest from April 15, 1865, and costs, as a balance alleged to have been due at that date for moneys theretofore received by said Bacon for the use and benefit of plaintiff. Charles C TOOLEY v. BACON. 177 POUBTH DEPARTMENT, Jmra TERM, 1876. Bacon died and the defendant, as hi administratrix, was substi- tuted as defendant in his stead. On the trial the plaintiff was examined as a witness in his own behalf, and was asked, whether he put any property into the hands of the intestate for the purpose of defrauding his creditors, or with that intent. The defendant's counsel objected to the question and the referee sustained the objec- tion and rejected the question. The court at General Term say : u The transfer of property from plaintiff to the intestate being assailed as fraudulent, it was competent to ask the witness whether the transfer to the ; ntestate was made with intent to defraud the creditors of the plaintiff, unless the plaintiff was prohibited from testifying by section 399 of the Code, as it involved a transaction between him and the intestate. The intent with which the transfers were made is a mere mental operation, and cannot strictly be called a personal transaction or communication between the intestate and the witness. But when the intent with which an act is done becomes the subject of legal inquiry, it is then, it seems to me, to be treated as a part of the act, and a party to the transaction cannot testify as to the intention with which it was done in an action between him and the repre- sentatives of the other party to such transaction. The reasons which induced the legislature to exclude the evi- dence of a party to a transaction when the other party to it is dead, apply in all their force to evidence of the intention with which an act is done, as proof of the act itself." Scott Lord) for the appellant. E. H. Lamb, for the respondept. Opinion by MULLIN, P. J. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Order of Special Term affirmed, with ten dollars costs and dis- bursements. HUN VOL. VIIL 23 178 PEOPLE EX REL. R., W. & 0. R. R. CO. u. D1XON. FOUKTH DEPARTMENT, JUNE TEKM, 1876. THE PEOPLE EX EEL. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, APPELLANT^ v. WILLIAM B. DIXON, SUPERVISOR, AND WILLIAM F. AUSTIN AND OTHERS, ASSESSORS OF THE TOWN OF RlOHI AND, OSWEGO COUNTY, RESPONDENTS. THE SAME v. THE SAME OFFICERS OF THE TOWN OF ALBION, IN SAME COUNTY. THE SAME v. THE SAME OFFICERS OF THE TOWN OF SANDY CREEK, m SAME COUNTY. Assessment eerUorari to review where property is generally assessed at one-third its value, in violation of the assessors' duty court will not reduce assessment of property assessed at a greater rate, to same proportion. APPEAL from an order of the Special Term of Oneida county, dismissing writs of certiorari in the above entitled causes. In the classified list, delivered by the relators to the assessors of the town of Richland, pursuant to the provisions of section 24 of the act entitled "An act to amend chapter 13 of the first part of the Revised Statutes, entitled 'Of assessments and collection of taxes ' " (chap. 176 of the Laws of 1851), the relators, in and by the affidavit of their tax agent, stated the true present value of the property owned by them in said town at $24,080. In section 5 of the act of 1851 (chap. 176), it is declared that all real and per- sonal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value, as they would appraise the game in payment of a just debt due from a solvent debtor. In the assessment roll made and duly verified by the assessors of the said town of Richland they assessed the property of the said relators in said town of Richland liable to taxation at the sum of $17,500, being $6,580 less than they were liable to be assessed, upon their own estimate of the value of their real property in said town. In the return of the said assessors, they " say and aver that the true and accurate value of the real estate of the said relators in the said town of Richland, at the time of said assessment, was $52,500, and that they assessed said real estate of said relators in said town PEOPLE EX BEL. R., W. & O. R. R. CO. v. DIXON. 179 FOURTH DEPARTMENT, JUNE TERM, 1876. at one-third part of its true value, as they did all other property in said town." The relators claimed that their property should have been entered upon said assessment roll at one-third its actual value, and that the assessment roll should be corrected by reducing the amount accordingly, adopting their own estimate of such value as proved before the said assessors, and not disproved by any proper evidence. The court at General Term say : " We are thus asked to sanction the illegal acts of these assessors in disobeying the express command of the statute, to assess the property of said town at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor; and instead thereof assessing such prop- erty at one-third its admitted estimated value, followed by a verifi- cation by said assessors annexed to said roll, that such was the true and full value of the property therein assessed, and this is the only relief asked by the relators from the court upon these several writs of certiorari. " This is certainly a bold proposition or request addressed to this court, and one which we must most necessarily reject. We cannot sanction in any manner the great indecorum, to say the least, of these proceedings on the part of these assessors. "As the only injury complained of is not a legal injury, and this relator is not in fact assessed for more than the admitted value of its property by its own witnesses and agents, and its only complaint is, really, that other parties not before us, or parties to this proceed- ing, are not assessed at the same rate with itself, and the relief it asks is utterly inadmissible, it only remains for us to affirm the decision of the court at Special Term in dismissing said writ, with costs." L. J. Darwin, for the appellants. S. C. Huntington, for the respondents. Opinion by SMITH, J. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Order of Special Term dismissing writ of certiorari affirmed, with costs. (Like order in the three cases.) DETERMINED IN THE AT GENERAL TERM, , 1876. ROBERT Y. MACKEY, RESPONDENT, v. CHARLES B. AUER, APPELLANT. Demurrer when the facts alleged justify any relief though not the relief asked for will -not be sustained. A complaint alleged a partnership between plaintiff and defendant; its dissolu- tion; an accounting; a certain sum found due plaintiff; a demand therefor and refusal to pay, and asked judgment for the amount. Held, not to be demurrable, although no promise to pay the amount was alleged. It is not sufficient to show that the relief upon certain facts could not be that sub- sequently asked for by the complaint ; it must be shown that, upon the facts alleged, the plaintiff would not be entitled to auy relief at the hands of the court, for the legal or equitable powers of the court are not necessarily con- trolled by the prayer for relief which the plaintiff adopts, although the relief, where no answer is interposed, cannot go beyond such prayer. A cause of action in the Code means any cause of action. APPEAL from an order made at Special Term overruling a demur- rer to the complaint, setting up that it did not state facts sufficient to constitute a cause of action. The complaint set forth that May 2, 1872, the plaintiff and defendant entered into a copartnership and continued the same until July 23, 1873, when it was dissolved by mutual consent of the parties ; that on said last mentioned daj they had an accounting of all matters of said copartnership, and an account therefor was duly stated between them, and that thereupon MACKEY v. AUER. 181 FIRST DEPARTMENT, JULY TERM, 1876. it appeared, and the fact was the defendant stood and was indebted to the plaintiff in the sum of $1,032.89, and said sum was on said day due and payable from the defendant to the plaintiff, and alleged the neglect and refusal of the defendant to pay said sum, though often requested, and demanded judgment for said sum, with interest and costs. John R. Dos Passos, for the appellant. The complaint does not state an express, or any promise on the part of the defendant to pay the demand. The rule is well settled in this State, that no suit can be brought at law for any thing relating to partnership concerns, unless there has been a final accounting, a balance struck, and an express promise. (Casey v. Brush, 2 Caines, 293 ; Murray v. Bogert, 14 Johns., 318 ; Halstead v. Sehioetsel, 17 id., 80 ; West- erlo v. Evertson, 1 Wend., 532 ; Clark v. Dibble, 16 Wend., 601 ; Townsend v. Goewey, 19 id., 424 ; Graham v. Gammon, 13 How. Pr., 360 ; Atwater v. Fowler, 1 Hall, 180 ; Koehler v. Brown, 31 How., 235; Pattison v. Blanchard, 6 Barb., 53T; affirmed in 1 Selden, 186 ; Cummings v. Morris, 25 N. Y., 629 ; Howard v. France, 43 id., 593 ; Crater v. Bininger, 45 id., 545 ; Gaqe v. Angell, 8 How. Pr., 335, 336.) Hamilton Cole, for the respondent. Where a partnership has been dissolved and an account stated, an action at law will lie with- out an express promise to pay. (Rackstraw v. Imber, 1 Holt's N. P., 368 ; Wetmore v. Baker, 9 Johns., 307 ; Bond v. Hays, 12 Mass., 34 ; Crosby v. Nichols, 3 Bosw., 450 ; Atwater v. Fowler, 1 Hall, 180 ; Poison v. Curtiss, 1 Starkie's N. P., 78 ; Veeney v. Leekw, 13 East, 7; Halderman v. Halderman, 1 Hemp. [Ark.], 559 ; Van Ness v. Forrest, 8 Cranch, 30 ; Pole v. Phillips, 5 id., 154, opin. of ORANCH, Ch. J. ; Lamalere v. Case, 1 Wash. C. Ct., 433 ; Beach v. Hotchkiss, 2 Conn., 428 ; Fanning v. Chadwick, 3 Pick., 420, and all the Mass, cases; Ozeas v. Johnson, 1 Binney, 191, and other Penn. cases; Orisby v. Nance, 3 Ala., 347; 13 id., 214 and the Ala. cases ; Fromont v. Copeland, 2 Bing., 170 ; Collyer on Part. [3d ed.], 280 ; Pars, on Conts., 165.) To sustain the demurrer amounts to a summary dismissal of the complaint. But the complaint cannot be dismissed if it states any cause of acticu 182 MACKEY u. AUER. FIRST DEPARTMENT, JULY TERM, 1876. legal or equitable. The demand for judgment and the form oi complaint is immaterial. DAVIS, P. J. : The complaint alleges that on the 2d day of May, 1872, the plaintiff and defendant entered into a copartnership, and carried on the business of manufacturing hair ribbons under the name of C. B. Auer & Co., and continued such partnership and business till the 23d day of July, 1873, when the firm was dissolved by mutual consent of the parties ; that on said twenty-third of July, the plain- tiff and defendant came to and had an accounting of all matters and transactions before that time had between them in said copart- nership, and an account therefor was duly stated between the plain- tiff and defendant, and thereupon it appeared and tho fact was, that said defendant stood and was indebted to the plaintiff in the sum of $1,032.89, and that said sum was on said 23d of July, 1873, due and payable from the defendant to the plaintiff. It then alleges the neglect and refusal of the defendant to pay said sum, though often requested, and demands judgment for the amount named, with interest and costs. To this complaint the defendant demurs, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It is claimed, on the part of the appellant, that the objec- tion is well taken, because no express promise to pay the amount found due upon the accounting between the copartners is alleged. If this point would have been well taken in an action at law under our former system (which it is not necessary to consider), yet it seems clear, upon authority, that it is not well taken now. The distinction between actions at law and suits in equity, as they formerly existed, no longer prevails. All remedies in courts of justice, whether legal or equitable in their character, are to be sought by actions or by special proceedings ; and it is only necessary, therefore, that the complaint should contain facts sufficient to call upon the court to grant relief to the plaintiff, by the exercise of either its legal or equitable powers ; and those powers are not neces- sarily controlled by the prayer for relief which the plaintiff adopts, although the relief cannot, where no answer is interposed, go beyond such prayer. It follows, therefore, that whenever the complaint MACKEY v. AUER. 188 FIRST DEPARTMENT, JULY TERM, 1876. contains allegations of fact, which if proved upon a trial after issue of fact joined would entitle the plaintiff to some relief, either legal or equitable, a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action will not be upheld. The defendant cannot demur to the prayer for relief. He must demur to the facts alleged ; and, to sustain his demurrer, he must show that upon those facts the plaintiff cannot have any relief at the hands of the court ; and it is not sufficient for him to show that the relief upon such facts could not be that asked for by the complaint. The right to demur is not given by the Code, on the ground that the complaint does not state facts sufficient to entitle the plaintiff to the relief demanded therein ; but on the ground that the complaint does not state facts sufficient to constitute a cause of action that is, any cause of action. Bringing the complaint in this action to this test, it seems to us clear that the facts stated would, if proven upon the trial upon issue of fact joined, entitle the plaintiff to relief. They show that a partnership was formed at a specified time, and in a specified busi- ness, between the parties to this action ; that the partnership and business continued to a specified time ; that then, by mutual consent of the parties, the partnership was dissolved, and that at the time of the dissolution an accounting took place between the plaintiff and defendant of all matters and transactions before that time had in said copartnership, and that an account was stated between them upon which it appeared, and the fact was, that the defendant stood indebted to the plaintiff in the sum of $1,032.89 ; and that that sum was, on the 23d of July, 1873, due and payable from the defendant to the plaintiff, and that the defendant had neglected, though often requested, to pay it. If the plaintiff had appended to these facts, as the relief demanded, a prayer that the alleged accounting between plaintiff and defendant be adjudged final, and that defendant be decreed to pay to the plaintiff the sura found due upon such accounting, there would seem to be no doubt, that facts constituting a cause of action to which such relief would be appli- cable are sufficiently stated in the complaint. Hence it follows, that unless we are to uphold demurrers of this kind because of the form of the prayer, or unless we are to fall back upon the rigid rules and technicalities of strict actions at law under the forme* 184 MACKEY v. AUER FIRST DEPARTMENT, JULY TERM, 1876. system, when suits in equity and actions at law had no common but separate and independent tribunals, the demurrer in this case cannot be upheld. These views are sustained in principle, we think, by the judgment of the Court of Appeals in Emery v. Pease (20 N. Y., 62), in which it is said that, " in determining whether an action will lie, courts are to have no regard to the old distinction between legal and equitable remedies. Those distinc- tions are expressly abolished by section 69. The suit does not, as formerly, fail because the plaintiff has made a mistake as to the form of the remedy. If the case which he states entitles him to any remedy, whether legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled." And in Johnson v. Kelly (9 N. Y. S C. [2 Hun], 139), where a demurrer like that in this case was overruled, notwith- standing the fact that the demand for judgment was for a specific amount, with interest and costs. The complaint in that case could very clearly not have been upheld on demurrer, in an action at law under the former system. For these reasons, and without considering the questions so ably and elaborately discussed by the learned counsel for the appellant, as to whether the complaint in this case would have been good in an action at law under the former system, or whether it is now good for the reasons stated by the learned judge in the court below, we are of opinion that the demurrer was properly overruled, and the order should be affirmed with costs, and with leave to the defendant to answer over in twenty days on the usual terms. BRADY and DANIELS, JJ., concurred. Order affirmed with costs, with leave to defendant to answer over IB twenty days on the usual terms. ROSS v. WOOD. 185 FIRST DEPARTMENT, JULY TERM, 1876. PETER B. ROSS, APPELLANT, v. SARAH WOOD AND OTHEKS, RESPONDENTS. Practice Perjury in a former suit not ground for bringing another action, to retry t'ke, same issues Remedy. Issues tried in a former suit cannot be retried in another between the same parties, upon allegations that one of the parties thereto, and her witnesses, conspired together to and did commit perjury hi the former, by means of which a verdict and judgment were had against the present plaintiff, then defendant The proper course for the aggrieved party to pursue is to apply for relief in the action itself, by a motion for a new trial on the ground of surprise or newly discovered evidence, or other matter out of which his claim for relief arises. To obtain relief by an independent action in a court of equity against a judg- ment obtained through fraud and crime, it must appear that the party had no remedy at law in the action, and that there had been no fnult or negligence on his part. A failure to promptly apply for appropriate relief in the action would be negligence; and that an application had been made without success, would afford no ground for a substantial review of such action, in another suit in a different court. APPEAL from a judgment in favor of the defendant, entered on a demurrer to the plaintiff's complaint setting up that it did not state facts sufficient to constitute a cause of action, by direction of the justice at Special Term. The complaint alleged that, on the 17th of October, 1867, the plaintiff purchased of one George W. Smith sixteen lots of ground, for the sum of $2,100, and for certain reasons deemed it prudent and judicious to have the deed therefor made to Sarah Wood as grantee. That plaintiff paid $1,500 on the purchase, and procured the said Sarah Wood to execute a bond and mortgage to Smith, for the balance of the purchase money. That afterward, being in a condition to hold title to real estate, he asked the said Sarah Wood to release or quit-claim the said premises to him, which she freely and voluntarily did, on the 29th of July, 1869. That she never had, and did not then claim or pretend to have, any title to, or interest in the same. That after receiving the said deed from Wood, and having the same recorded, the said Wood then for the first time asserted or pretended any claim to said real estate. That on the 23d of September, 1869, she commenced an action against him. in HUN VOL. VIII. 24 186 ROSS v. WOOD. FIRST DEPARTMENT, JITLY TERM, 1876. the City Court of Brooklyn, to set aside her deed to this plaintiff as fraudulent and void and as a forgery, alleging that she never executed the same, to which this plaintiff interposed an answer. That said action was tried before said court and a jury, and thereon the said Sarah Wood falsely testified that the plaintiff acted as her attorney in the transaction, and purchased the lots from Smith for her; that she never executed the deed to this plain- tiff, and to various other false facts, and produced as witnesses in her behalf her mother, Nancy Carpenter, her sister Emma Carpen- ter, her brother George W. Carpenter, and her daughter Henrietta Wood, each of whom gave material evidence on said trial in her favor, and which evidence was, in all its material parts, corruptly and feloniously false, and well known to the said Sarah Wood to be false and untrue when she produced the same in her behalf on said trial, and that her own evidence, and that she produced, was for the purpose of imposing upon and misleading said court and jury, and fraudulently and corruptly thereby to obtain a decision in her favor on said trial, and by that means to cheat this plaintiff, then defend- ant on said trial, out of his money and property. The complaint further set forth wherein such testimony was false, and alleged that, in consequence and by reason of said perjuries, the jury found a verdict in favor of said Wood on said trial, and the court thereupon rendered judgment setting aside the deed from said Wood to this plaintiff, then defendant, and affirming the title of said Wood thereto, to his injury. That the defendants in this action, O'Brien, Winkler and Perez, were grantees, subsequent to the trial, of the premises, and well knew of it and all the proceedings thereon, and that the verdict therein was obtained by willful and corrupt per- jury; and the plaintiff demanded judgment that said fraud and perjuries might be inquired into and investigated by the court, and that said judgment and adjudication might be reviewed by the court, and be annulled and canceled and set aside as having been obtained by fraud and perjury of said Wood and her witnesses, and that the plaintiff's title to said premises might be affirmed and held good and effectual, and that the pretended title of O'Brien, Wink- ler and Perez be set aside as fraudulent and a cloud upon plaintiffs title, and for such other relief as the court may be pleased tc grant. ROSS v. WOOD. 187 FIRST DEPARTMENT, JULY TERM, 1876. L. S. Chatfield, for the appellant. Rufus L. Scott, for the respondents. DAVIS, P. J. : The question on this demurrer is, whether the issues tried in a former suit, commenced by Sarah "Wood against the present appel- lant, can be retried in this action upon allegations that the then plain- tiff, Sarah Wood, and her witnesses named in the complaint in this action, conspired together to commit and did commit perjury on the former trial, by means of which a verdict and judgment in that action were obtained in her favor. The issue in the former action was tried before the court and a jury in due form, and contested by the appellant ; and no fraud is alleged to have been practiced upon that tribunal in any of the proceedings in the action or in obtaining the verdict and judgment, other than is contained in the allegation that the witnesses named in the complaint testified corruptly and falsely on the material issues. If this action can be maintained to retry the issue upon such allegations, there can be of course no end to litigation. Nothing will hinder the defendants in this action, if the plaintiff shall chance to succeed, from filing their complaint alleging the perjury of the plaintiff and his witnesses as the reason of his success, and from obtaining a retrial of the same issue upon the ground of such per- jury. And so, whichever party shall be defeated in the successive experiments, the other will be at liberty to return to the charge ad infinitum, till death, exhaustion, or failure of issue or of legal representatives shall terminate the struggle. The remedy of plain- tiff must be sought by direct proceedings in the former action and not by a collateral suit in another court, in which the issue tend- ered is the perjury of witnesses on the trial of such former action. The court below, on deciding the demurrer, pronounced the following opinion : " VAN VORST, J. It is true, as is argued by the learned counsel for the plaintiff, that a judgment may be questioned on the ground that it was obtained through fraud, contrivance or crime of any description. As was said by ALLEN, J., in Dobson v. Pearce (2 Kern., 165) : 188 ROSS v. WOOD. FIRST DEPARTMENT, JULY TBUM, 1876. 'Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity.' The judgment of which complaint is made in this action, and which it is asked ' may be anulled, canceled and set aside ' as having been obtained by fraud and perjury, was recovered in an action in the City Court of the city of Brooklyn, after a trial of the issues therein upon the merits, and was entered upon the verdict of the jury impanelled to try the same. While the maxims of the law evidently forbid the review of the proceedings, verdict and judgment in that action by an inde- pendent proceeding originating in another court, no authority is adduced which would justify such steps upon the allegations of the complaint herein. In a case of the character above named, when a trial has been had, and an adverse result has been produced through a fraudulent conspiracy and perjury, the proper course for the aggrieved party to adopt is to apply for relief in the action itself by a motion for a new trial on the grounds of surprise or newly discovered evidence, or other matter, out of which his claim for relief arises, and courts are ever ready to grant relief in the action upon proper cause shown. But it is argued by the counsel for the plaintiff, that the demurrer interposed by the defendant is an admission that the verdict and judgment was obtained through fraud and perjury, and upon such admission the complaint should be held sufficient to support this action. But it must appear, in order to obtain relief by an independent action in a court of equity against a judgment obtained through fraud and crime, that the party had no remedy at law in the action, and that there had been no fault or negligence on his part. A failure to promptly apply for appropriate relief in the action itself would be negligence ; and that an application had been made without success, would afford no reason for a substantial review of such action in another suit in a different court. But again, there are certain well grounded and accepted pre- iumptionB, in the light of which the allegations in this complaint WILLS t. SIMMONDS. 189 FIRST DEPARTMENT, JULY TERM, 1876. must be considered, and which, in view of what is sought to be accomplished by this action, must control. Among these presump- tions are the following : That the decisions of a court of competent jurisdiction are well founded, and that facts, without proof of which the verdict could not have been found, were proved on the trial. Furthermore, that the testimony which justified that jury in finding that verdict was true. The law presumes honesty against fraud, and will presume that a witness has not perjured himself. (Broom's Legal Maxims, 908-912.) "And these presumptions are not to be overcome otherwise than by effective evidence, produced and applied in appropriate reme- dies sanctioned by the rules of law, and the methods of procedure in judicial tribunals. There should be judgment for defendant on the demurrer, on the ground that the complaint does not set forth facts sufficient to establish a cause of action." We adopt this opinion as a correct exposition of the law. The judgment should be affirmed. BEADY and DANIELS, JJ., concurred. Judgment affirmed. BTTFUS A. WILLS AND OTHERS, APPELLANTS, v. HENRY SIMMONDS AND OTHERS, APPELLANTS. ( No. 2. ) RUFUS A. WILLS AND OTHERS, RESPONDENTS, v. HENRY SIMMONDS AND OTHERS, APPELLANTS. Partners Action by one against anot/ier, but not against all when maintainable Contract refusal to perform creates present breach of. Although the partnership relation may exist between parties, the court has juris- diction to entertain a suit at law, brought by one against only one of the several other partners for damages, where the action involves an inquiry only with respect to the damages which the plaintiff has sustained solely because of an alleged breach of the partnership agreement by the defendant. 190 WILLS v. SIMMONDS. FIRST DEPARTMENT, JULY TERM, 1876. Where the particular controversy caii be completely determined without preju- dice to the rights of the parties not made defendants, they are not necessary parties thereto. Where parties who were bound by an agreement to accept certain bills ot exchange to pay for goods purchased, declare in advance that they will nut do so, such declaration of their intention not to perform their contract, is a broach thereof, and upon the occurrence of the breach a cause of action exists at once against them, whether the goods were at hand and delivered or to arrive, the damages therefor depending upon the facts to be established upon the trial APPEALS from an order made at Special Term in suit No. 1, on the part of the plaintiffs, fro:u so much thereof as sustained a demurrer to the second cause of action set forth in the complaint ; on the part of the defendant, from so much thereof as overruled the demurrer to the first cause of action set forth in the complaint. Appeal by the defendant from an order made at the same Special Term in the second suit overruling a demurrer to the complaint. The demurrer to both causes of action in the first suit, and to the cause of action in the second, were alike, and were : 1st. That there was a defect of parties defendant, in that M. Crocker and James Lee, Jr., were necessary parties defendant, and ought to have been joined as such. 2d. That the court had no jurisdiction of the subject of the action. 3d. That the complaint did not state facts sufficient to constitute a cause of action. The causes of action in both suits were based on the same agree- ments. A summons for relief was served in the first action, brought to recover damages against the defendants for refusing to comply with the terms of their contract, and directing other parties not to comply. A summons for money in the second action, for refusal to accept a certain bill drawn upon them in pursuance of the same contracts. On the 5i4th day of May, 1873, the plaintiffs' firm, Wills, Edmands & Co., of Boston, entered into an agreement with the defendants' firm, Simraonds, Hunt & Co., of London, England, in writing. M. Crocker and James Lee, Jr., were also parties to the agreement, by which it was, among other things, agreed that M. Crocker & Co., in which name M. Crocker had theretofore carried on business in Boston as a crusher and manufacturer of linseed oil WILLS v. SIMMONDS. 19] FIRST DEPARTMENT, JULY TERM, 1876. but in which he had become embarrassed, and had become indebted to the other parties to the agreement, should go on and manufac- ture seed to be furnished him by the plaintiffs, upon orders given by Crocker & Co., to be filled at Calcutta by plaintiffs at regular Calcutta commissions therefor ; the seed to be paid for by credits on London, furnished by plaintiffs, to meet which costs of credit and freight duties, insurance, and landing charges, and commissions thereon of two and one-half per cent gold on gross gold cost in Boston, plaintiffs should receive from Crocker, upon the arrival and entry of the ship at the custom-house, one-third, in a draft in sterling for said one-third, drawn by M. Crocker & Co. upon the defendants' firm in London, which drafts the defendants agreed to honor, or, at the option of the plaintiffs, in the proceeds of such drafts, when sold by M. Crocker & Co., one-third in gold by note of M. Crocker & Co., to the order of James Lee, Jr., and indorsed by him, and having ninety days to run from its date, and the remaining one- third in gold by note of M. Crocker & Co., to the order of plain- tiffs, or to the order of M. Crocker & Co., at plaintiffs' option, and by them indorsed, to run ninety days from date, interest to be charged on the amount of Crocker's and Lee's notes in the accounts, to be made up as theretofore made up between Crocker & Co. and plaintiffs. Plaintiffs were to insure the importations at a premium or cost to M. Crocker & Co. of three per cent, but not to assume any liability, the insurance being effected by them as agents. It was also agreed that all linseed cake made in the oil mill under the agreement should be shipped to the defendants in London by Crocker & Co., to be sold in the usual manner on consignment, the account sales thereof to be handed to Crocker & Co., and at end of every two months, in case the shipments of cake should not pro- duce an amount equal to the sums for which drafts under the agree- ment should have been drawn on defendants' firm, then Crocker & Co. should remit to defendants good bills on London out of the proceeds of the manufacture of the mill, for the deficit or differ- ence between the produce of the cake and the amount oi the bills. Crocker & Co. were at liberty to order seed to the extent of 4,000 bags and 5,000 pockets per month, which would enable them to run daytime only, but in the joint discretion of Crocker & Co. and the plaintiffs, the amount of the seed should be doubled. 192 WILLS v. SIMMONDS. FIRST DEPARTMENT, JULY TEBM, 1876. Plaintiffs were also at liberty to cease furnishing any supplies of seed at any time when, in their judgment, further continuance oi the manufacture was injurious to the interests of the parties to the agreement. By the agreement the arrangement between the parties contem- plated by its terms was to continue one year. At the end of the year, after paying the expenses of running the mill, including necessary repairs and insurances, Crocker should draw $6,000 for his personal expenses, which he was at liberty to draw at the rate of $500 per month. The net balance of earnings to be divided by M. Crocker & Co. in three equal parts, one of which was to be paid over to each of the parties to the agreement other than Crocker, to be applied to the reduction of the indebtedness of Crocker & Co. to said parties. It was also agreed that all proceeds of seed furnished under the agreement were to be held for the benefit of the parties other than M. Crocker & Co. equally. Afterward, and on the 24th day of May, 1874-, by the agreement of the parties, the contract was extended for one other year, and until the 24th May, 1875, with some modifications, however. The modifications were, substantially, that in case the seed imported should be wholly lost by fire or perils of the sea, then plaintiffs should be entitled to hold to their own use the insurance recovered thereon, to the extent of their advances and the costs and charge's of importation, and any excess should be paid to Crocker & Co., and in case the sums received from such insurance should not cover their advances and charges in Calcutta and costs of importation, Crocker & Co. should reimburse them in full such charges as should not be refunded by the insurance moneys, and in case Crocker & Co. should fail to reimburse them, said liabilities should be shared equally by the other parties to the agreement. And as to the portion of the gross gold cost of the seed to be furnished in Boston, for which Crocker . SIMMONDS. FIRST DEPARTMENT, JOLT TERM, 1876. (4 Exch., 345), do not conflict with the case of Hochster v. De La Tour or with this view. The right of the party to act on the notice not to perform is recognized by them. In Frost v. Knight (L. R. [5 Exch.], 322 ; reversed in Exchequer Chambers, L. R. [7 Exch.], Ill), the right of the party to treat tho repudiation of the contract as putting an end to it, is not only admitted but sustained by the authorities, and although the rights nf the defaulting party are in that case preserved by suggestions thereto until the time of performance has actually arrived, if the injured party delay commencing his action before that time, yet the rule suggested is a deduction merely. What would be obliga- tory on the party repudiating to overcome his act, is not defined. Doubtless, if the defendants changed their views on the subject of repudiation, and so advised the plaintiffs when the opportunity still existed for them to perform, that fact would be a perfect answer to the case alleged (Cases supra), but the burden of showing it rests upon them. We are now, however, discussing the plaintiffs' case on the complaint. When the refusal is positive, as it was in this case, the plaintiffs were under no obligation to seek the defendants again, to ascertain whether they repented and would perform, and the case is made out. The plaintiffs had a right to act from the standpoint which the defendants had themselves created. Men are presumed to intend the natural consequences of their acts, and when the defendants said, " We won't," it meant that they " would not," and the consequences are theirs. The error committed in the court below was therefore in sustain- ing the demurrer to the second cause of action. The appeal of the plaintiff is for these reasons sustained, and that of the defendants overruled. Both appeals are consequently decided in favor of the plaintiffs, and the orders made affirmed, except so far as the one sustains demurrer to second cause of action in the complaint in the first action, and as to that reversed and demurrer overruled, with ten dollars costs, and the disbursements of the appeal. DAVIS, P. J., and DANIELS, J., concurred. Ordered accordingly. SPELMAN v. TERRY. 205 FIRST DEPARTMENT, JULY TERM, 1876. IN THE MATTER OF THE PETITION OF SARAH FRANCES SPEL- MAN, HENRY C. CHERRY AND CYNTHIA BROWN HOYT, PETITIONERS, RESPONDENTS, v. EDMUND TERRY, SPECIAL GUARDIAN, APPELLANT. Special guardian owner of tax title to infants' real estate cannot dispose of hi incumbrance upon estate, altJwugh it was acquired previous to such appointment. + Where a person had been appointed a special guardian to sell certain real estate belonging to infants, and, at the time, was himself the owner of a tax title thereto, and pending the proceedings under his appointment, sold the tax title and retained the money, claiming it as the proceeds of his individual personal property: Held, that having been appointed special guardian for the sale of the land while owner of, and prior to the sale of his tax title thereto, the being clothed with such office deprived him of the power of disposing of the tax title, and the sale of the same must be considered as one accruing to the infants' advantage, and he must account to them therefor, but should be allowed his payments and expenses in reference to such tax title, with interest, up to the time of the adjustment of the balance, if any, due to the infants. APPEAL from an order of the Special Term, ordering Edmund Terry, special guardian of Martha Celina Brown and Alice Brown, iu discharge of his trust to pay over certain moneys. Freeman Brown, a colored man, died in 1853, possessed of a house and lot in Brooklyn, leaving two children, Martha Celina Brown and Alice Brown, infants. In the spring of 1857, Edmund Terry, an attorney, was appointed special guardian in proceedings to sell this their real estate. At the time of such appointment, Terry held a tax title to said premises, and after his appointment he made no sale in such proceedings, but during their pendency and on or about April 17, 1858, disposed of his tax title to one Hunt for $382.33. Both Martha Celina Brown and Alice Brown, the said infants, died subsequent to such sale, under the age of twenty-one years, leaving the petitioners, Sarah Frances Spelman, Henry C. Cherry and Cyn- thia Brown Hoyt, their only heirs at law, next of kin, who, in June, 1875, made their petition in the original matter, setting forth that they were poor, and until within three years ignorant of the acts of Terry, and from want of means unable to take action upon the same and praying for a reference, and that Terry be compelled to 206 SPELMAN v. TERRY. FIRST DEPARTMENT, JULY TERM, 1876. render an acconnt of his proceedings as guardian for said infants, and for all moneys received by him from the said property, and by him as such guardian, and from the sale made by him, and to pay such moneys into court to be disposed of as it should deem proper. Henry E. Dames^ for the appellant. John S. Davenport, for the respondents. BRADY, J. : On the 28th of March, 1851, the appellant became the owner of a lease or declaration of sale, constituting a tax title affecting the premises known as 132 McKibben street, in the city of Brooklyn. He assigned it to one John G. Haight, on the 4th of June, 1851, and then commenced an action thereon against Freeman Brown, a colored man, who was the owner of the fee. Brown died in 1853, leaving a widow and two infant children, the widow being their step- mother. He left a will by which he appointed Robert Brister his executor. On the 18th November, 1856, Brister paid to Mr. Terry $132 for the expenses of the action mentioned, and for the mesne profits, taking a receipt signed by Mr. Terry, as the attorney of Haight. In the receipt the suit is styled in ejectment, and the house and lot is said to have been sold for taxes, about ten years before the receipt was signed. Soon after the 1st of October, 1856, the precise date does not appear, Haight reassigned the lease or declaration of sale to Terry, and it may be that he was the owner of it when the money mentioned was paid by Brister to him. It may be because the reassignment was, as stated, soon after the 1st of October, 1856. In 1857, an application was made in the County Conrt of Brooklyn, for the sale of the infants' estate, and Brister applied to Terry to conduct the proceedings therefor, and he con- sented to do so. He became also, on his application, the special guardian to make the sale, and filed the bond required by law. It will be perceived that when he undertook to conduct the proceed- ings for the sale of the infants' real estate, and when he became special guardian, he was the owner of the lease or declaration of sale, upon which he had theretofore commenced an action against the father of the infants, ostensibly for Haight. He held, theiefore, ar SPELMAN v. TERRY. 207 FIRST DEPARTMENT, JULY TERM, 1876. interest adverse to the infants, and one which, if the sale contem plated by the proceedings mentioned had been accomplished, would have required from him a release, in order to remove an apparent cloud, unless, indeed, the lease or declaration of sale was void upou its face. He made no sale as special guardian, but on the 17th of April, 1858, and while he was still the attorney and special guardian as stated, he sold the lease or declaration of sale to one Joseph Hunt, and retained the money as his own, claiming it as the pro- ceeds of his individual personal property. It further appears that the assignment of the lease in no way affected the estate, except so far as it deprived the heirs of the possession of it, because Hunt was declared to possess no title, and was ejected from the premises by the judgment of this court, rendered in Kings county. On these facts the learned justice, at Special Term, declared that Terry having prior to the sale of the land been appointed guardian, the sale must be considered one accruing to the infants' advantage, and he was ordered to account. When the report of the referee, appointed in the proceedings to take proof of the matters stated in the petition, was presented, a further order was made directing Terry to pay the money received on the sale from Hunt, with interest thereon, deducting therefrom the sum of twenty-three dollars and thirty-five cents, paid for redeeming the land from a tax burden, but making no deductions for commission. From that order this appeal was taken. The conduct of Mr. Terry was doubtless based upon the supposition that he could represent his wards and pre- serve his own interests which were adverse to theirs. The principle on which guardians are appointed is, that they shall have no interests adverse to the infants, and the same rule prevails in the selection of trustees. Mr. Terry should have revealed his possession of the lease to the court and taken the precaution to have elicited some order or opinion thereupon, to guide him in the acceptance or rejection of the contemplated trust, and thus to have protected himself from any liability, by virtue of his special character, when he undertook to perform an act decidedly in conflict with it and the principles on which it was established. There is no difference in principle between his attitude to the infants and that of a broker or agent who undertakes to serve two employers, or a trustee who accepts a trust, given by the court, on the assumption that he hag 208 SPELMAN v. TERRY. FIRST DEPARTMENT, JULY TERM, 1876. no individual purpose to serve or protect, which is hostile to the whole estate of which he becomes the guardian and protector. Many of the cases on the subject of the duty of the trustee to the cestui que trust, and quite sufficient to illustrate the governing rule, will be found collected in Gardner v. Ogden (22 N. Y., 327). In the language of the lord chancellor, in Whichcote v. Lawrence, cited in 22 New York Reports (supra) : " The real proposition, which is very plain in point of equity, and a principle of clear reasoning, is that he who undertakes to act for another in any matter, shall not in the same matter act for himself." If Mr. Terry, when it became apparent that he could not sell the property as special guardian under the order, had asked to be discharged, he could have relieved himself from all obligation in that way, and could then have enjoyed his individual rights without error. This he did not do. The relation between attorney and client, and guardian and ward are watched with jealous care by courts of law, and it must be pre- sumed that Mr. Terry knew of the rules prevailing in that respect. It would not answer in the administration of justice to sanction the appointment of a special guardian with interests adverse to the infants, but when it is done, it must be attended with the surrender of such interests to the court on accepting the appointment. This is the necessary consequence of assuming to serve two masters. It may be that in cases where such a rule is to be invoked, there may be circumstances destroying the responsibility involved, but there are none such in this case. The appellant's tax title, which is not a muniment of the highest order, was one which should not have been suppressed by him, and the receipt of the money from Hunt should have been communicated to the court in some form. It was not. This court reposing great confidence in its officers, requires from them absolute good faith and cannot be censured if it is punc- tilious and exacting, in reference to the subject of its confidence or trust. It is said by the appellant, that he did not sell and could not do so as guardian, but this does not satisfy the conscience of the court. He was able to sell under his tax title, and it was on his own showing valueless. He could not well urge the sale under his guard ianship, without consenting to abandon his tax title, and that he does not seem to have been disposed to do, and yet it was, in view of his trust, the only course for him to pursue except to ask to be relieved SPELMAN v. TERRY. 209 FIRST DEPARTMENT, JULY TERM, 1876. from his guardianship by reason of his conflicting interests. If his requests were granted, his tax title would then have been available. It is said, also, that no case can be found in which it has been held that a trustee by being clothed with office is deprived of the power of disposing of an incurabrance which he may have previously had against the estate. This may be so. Diligent search has not revealed any case, but that may arise from the fact that the courts have not been called upon to act in such a case. But the rules existing in reference to trustees, which are applicable to principal and agent, and guardian and ward (Law of Trusts and Trustees, Tiff. & Bull., 144) are comprehensive enough to embrace such a case. The general rule, said the court, stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily excite a conflict between self-interest and integrity. It restrains all agents, public and private. (Michaud v. Giro'd, 4 How. [U. S.], 503.) It is also said that no harm was done by the sale, inasmuch as the pur- chaser received no title, but it appears that he was in possession under it, and through the appellant's instrumentality, the infants were deprived of their estate for a time. This illustrates the success of the self-interest, and the result of the conflict between the respective rights and duties, residing in the same person. It is impossible, therefore to view this case other than as one in which the guardian has rendered himself amenable to the authority of this court. Its supervisory power over the estates of infants, coupled with the fact that the appellant is an attorney and counselor of this court, leaves no room to doubt on that subject. The only real difficulty in the case is, to determine to what extent its power should be exercised. Whether to compel the payment of the whole sum received, with interest, or a part of it only. In other words, to do, equity. If it should appear that the estate or its owners were damaged by the sale to the extent of the money received and inter eet, it would be proper to require its payment, if not, it would not be. It is true that the appellant may be presumed to have sold his tax title as a grant in effect of the premises, but the price demanded precludes the probability of such a proposition. By the order appealed from he has been treated as the recipient of the sum paid him for the benefit of the infants, and it would appear without regard to his payments, in reference to the title, except one. Under HUN VOL. VIII. 27 2riO ROLLWAGEN v. POWELL. FIBST DEPARTMENT, JULY TERM, 1876. all the circumstances, therefore, we think the order should be modi- fied as follows : The appellant should be allowed his payments and expenses in reference to the tax title, with interest thereon up to the time of the adjustment of the balance, if any, to the infants, and they should be allowed such balance after deducting the total of the appellant's payments and necessary expenses and commissions from the amount received by him, and the interest thereon, provided the validity of the lease be not contested. We think the appellant should also be allowed his disbursements of this appeal. If the respective counsel cannot agree as to the amount, then an order of reference will be made to Mr. Chetwood to take proof and settle the same, and to determine the validity of the lease given pursuant to the tax sale, if that be denied. Ordered accordingly. DAVIS, P. J., and DANIELS, J., concurred. Order modified as in opinion. FREDERICK ROLLWAGEN, JR., LOUIS P. ROLLWAGEN AND GEORGE D. ROLLWAGEN, APPELLANTS, v. ALFRED POWELL, ALFRED S. PURDY AND OTHEKS, RESPONDENTS. Physician? fees for examination, as to pregnancy of widow quasi officers of court claim charged on estate, not affected by discontinuance of action Surro- gate decree to pay claims charged on estate by Supreme Court although not directly within his statutory power* upJield. In an action in the Supreme Court to set aside a will an order was made, with the consent of all parties, appointing two physicians to inquire into the pregnancy of the widow of deceased, and directing that their compensation be allowed as a charge against the estate. After the physicians had discharged their duties, and pending a reference to ascertain the value thereof and before the report thereon, the action was discontinued without notice to the physicians, or the court being advised of such outstanding proceedings. The referee's report was subsequently filed awarding them $1,000, and an order made and entered awarding them such um, with eighty dollars expenses of the reference, and directing that said sums be ft lien and charge upon the estate. On petition to the surrogate an order ROLLWAGEN v. POWELL. 211 FIKST DEPARTMENT, JULY TERM, 1876. was made by him, directing the administrator of the estate of the deceased to pay the amount of such order. Held, that the physicians in this case were quai officers of the court, and it not being intended that they should be dependent upon the contingency of an action for their compensation, it was made a charge in anticipation upon the estate. That such order having been made with the consent of all parties, the physicians became quasi parties to the action in whose favor a decree had been entered, and the discontinuance as to them without notice of the proceedings therefor was a nullity. That their claim was not a debt or demand against the testator, or the executor or personal representative of the deceased; it was therefore questionable if the surrogate could decree the payment thereof; yet as the order of the surrogate was predicated on the decree of the Supreme Court, for the payment of services ordered by it, necessary in the administration of justice, which expenses should be paid out of the estate, and could, by the Supreme Court, have been directly ordered by it to be paid out of the funds in the hands of the administrator, it was proper, as matter of form, to reach the funds of the estate in the hands at the special administrator appointed by him, and would not be disturbed. APPEAL from an order of the surrogate of the city and county of New York, made on the 31st day of December, 1875, ordering Frederick Rollwagen, Jr., as receiver of the estate of Frederick Rollwagen, deceased, to pay Alfred Powell and Alfred S. Purdy $1,080. Frederick Rollwagen died in the city of New York on the llth day of October, 1873. A paper was propounded to the surrogate of the city of New York, as the will of said Frederick Rollwagen, for probate. Upon contest by the next of kin and heirs at law, the pretended will was rejected by the surrogate, and his decision was affirmed at General Term of the Supreme Court on appeal, and also by the Court of Appeals, on appeal to that court. While the matter was pending before the surrogate, and still undetermined by him, Samuel S. Browning (who was a minor and an heir at law of said Frederick Rollwagen), by Malcolm Campbell, his guardian ad litem, commenced in the Supreme Court a suit against Magdalena Rollwagen and others, to set aside the paper claimed to be a will, as a will of real estate, and to avoid the devises of real estate therein. After the commencement of this action, Magdalena Rollwagen. the widow of said Frederick, claimed to be pregnant, and by order 212 ROLLWAGEN v. POWELL. FIRST DEPARTMENT, JULY TERM, 1876. made and entered in this action of Samuel S. Browning by Mal- colm Campbell, guardian ad litem, v. Maydalena Rollwagen and others^ on or about the 14th day of November, 1873, Dr. Alfred Powell and Dr. Alfred S. Purdy were appointed physicians to attend upon and examine the said Magdalena Rollwagen, in connection with her family physician, and also to be present at the time and place of the birth of her child, if any ; and it was further ordered that the compensation for said physicians be allowed as a charge against the estate of said deceased, Frederick Rollwagen. These physicians performed their services. No compensation was paid them, and upon their petition an order was made in said action on the 22d day of January, 18T5, referring to William A. Duer, Esq., the question of the proper amount of compensation to be allowed them. On the 19th day of February, 1875, an order was obtained in said action (Browning, by guardian ad litem, v. Magdalena Rollwagen and others], in Supreme Court, to show cause why said action should not be discontinued. On the 3d day of March, 1875, a decision was rendered that said action be discontinued on payment of taxable costs to defendants Magdalena Rollwagen, Henry Her- mann and George Hermann. Said costs were paid, and on March 15, 1875, an order was entered discontinuing said action, but said Powell and Purdy had no notice of such proceedings, nor was the court advised of the outstanding proceedings in reference to them. William A. Duer, referee, under the order of January 22d, 1875, made his report on the 20th day of March, 1875 (after the discon- tinuance of the action), finding, as a question of fact and conclusion of law, that each of said physicians, Drs. Powell and Purdy, recover from the estate of said deceased the sum of $500. The report was filed in the clerk's office March twenty -seventh, noticed for confirmation August 25th, 1875, for the first Monday of September, 1875, and an order confirming said report, and allow- ing the award, with eighty dollars referee's fees, was entered Sep- tember 29th, 1875. By the terms of said order * * * "the said sum of $1,000 is allowed to them, said Powell and Purdy, for their services, together with eighty dollars for the fees of said referee on aid reference, and the same hereby are adjudged to be a lien and charge upon the estate of said Frederick Rollwagen, deceased," etc. ROLLWAGEN v. POWELL. 218 FIRST DEPARTMENT, JULY TERM, 1876. On the 19th of October, 1875, Doctors Powell and Purdy made a petition to the surrogate of the city and county of New York, presented on the twenty-first of October, for an order directing the receiver of the estate of Frederick Rollwagen to pay them the sum of $1,080 out of the moneys collected from the real estate of deceased, and in their petition set forth, among other things, their petition to the Supreme Court, the order of reference therein, the making and filing of the referee's report, and the order of the Supreme Court thereon of September 29, 1875. On December 31, 1875, the surrogate made an order thereon, that said Frederick Rollwagen, Jr., the receiver, pay said Doctors Powell and Purdy the full amount of their claim, amounting " in the whole to the sum of $1,080." From this order of the surrogate this appeal is taken Henry L. Clinton, for the appellants. Lemuel Skidmore, for the respondents Powell and Purdy. BBADY, J. : The examination of the widow as to her condition having been necessary, and all the parties to the action having consented to an order therefor, Messrs. Powell and Purdy, who are physicians, were duly appointed to attend upon and examine her, in conjunction with her family physician. It was also provided by the order that their compensation should be allowed as a charge against the estate of Frederick Rollwagen, deceased. The respondents, Powell and Purdy, did what they were required to do, and in all respects com- plied with the order of the court appointing them. This having been done, they applied for compensation, and gave due notice of that proceeding to all the parties in the action, and to William A. Seaver, Esq., who was then the special administrator of the estate, and upon that application, by consent of all the parties to the action, the matter was referred to William A. Duer, Esq., to take the necessary proofs and report the same to the court with his opinion thereon. Due notice of the proceedings before him was given to all the parties in the action, the proofs were taken, and the report filed and confirmed after due notice to all the parties 214 KOLLWAGEN v. POWELL. FIRST DKPAIITMKNT, JULY TEKM, 1876. interested. It was also adjudged and decreed, by order of confirma- tion, that the sums named should be a lien and a charge upon the estate and paid out of it, the rents or income and profits thereof. All this was done before the 15th March, 1875, except the making and filing of the report of Mr. Duer, which bears date the 20th March, 1875. The respondents Powell and Purdy had, therefore, been selected, had discharged their duties, and their compensation, whatever it might be, had, by virtue of the order appointing them, become a charge upon the estate of Frederick Rollwagen. There was no appeal taken either from that or the subsequent order con- firming the referee's report, and the latter order, so far as it decreed the payment of the compensation out of the estate, was only a continuation of the first order which declared that it should be a charge thereupon. On the 15th March, 1875, the action in which the orders were made was discontinued by order of the court, but no notice of such proceeding was given to the respond- ents Powell and Purdy, and it does not appear that the court was then advised of the outstanding claim of the respondents Powell and Purdy, or of the proceeding then pending to ascertain its effect. It is, on the contrary, quite evident that the matter was not revealed, and there is no pretense that it was. The respond- ents Powell and Purdy having been selected, by order of this court, for an investigation in a proceeding which has for centuries formed a part of the jurisprudence of England (see Exparte Aiscough, 2 P Williams, 591 ; Exparte Bellett, 7 Cox, 297 ; Coke Litt, 8 C. ; also, article in Daily Register Jan. 29, 30, 31, 1874, where cases are col lated), became quasi officers of the court, clothed with extraordi- nary powers, and invested with duties of a high and delicate char- acter, requiring vigilance, promptness, and ability. It was not intended that they should be dependent upon the contingency ot an action for their compensation, and hence it was made a charge, in anticipation, upon the estate. This was done by consent of all the parties on which the order was founded. They became, there- fore, quasi parties to the action in whose favor a decree had been entered, and the discontinuance as to them was therefore a nullity, inasmuch as they were not notified of the proceeding by which it was accomplished. It was determined in favor of the respondents Powell and Purdy that they should be paid the amount awarded, ROLLWAGEN v. POWELL. 215 FIRST DEPARTMENT, JULY TERM, 1876. and they had a judgment therefor against the estate, ita income and profits. The power of the surrogate to decree the payment of such a demand may be questionable, because it was not a debt or demand against the testator, or against the executor or personal representative, and it is over such demands only that the surrogate possesses the limited powers given by statute. Debts created by act of the testator or intestate, or his executor or administrator. (Redfield on Surrogates, pp. 21, 306, and cases cited.) The demand of the respondents Powell and Purdy was not a debt created by either of these persons, but a charge made by order of the court, which was, in effect, an appropriation of the estate pro tanto to its payment. The order of the surrogate was proper doubtless, as matter of form, to reach the funds of the estate in the hands of the special administrator appointed by him, although this court could have ordered its payment directly out of the funds in the hands of the special administrator. At all events no harm has been done, predicated as it was of a decree of this court. The service ordered by this court, and to which it related, was necessary in the adminis- tration of justice, and one the expenses of which, like the appoint- ment of a receiver or special administrator, should be paid out of the estate, because the result related to the whole and not to a por- tion of it, and was important. If the widow were, in other words, pregnant, and a child were born alive, it would increase the num- ber of heirs and diminish the share of each. All were interested in the proceeding, therefore, and each should contribute to the expense. Assuming the respondents Powell and Purdy to be quasi officers of the court, and placing them upon the same plane with receivers, they should be paid out of the common fund, and such was the order in this case. Granting the position sug- gested, the discontinuance would not affect them, because the receiver could not be prejudiced by such a proceeding as to his allowances, whether the funds were in his hands or on deposit to the credit of the action. For these reasons the order appealed from should be affirmed, but without costs. The questions considered are novel, and diligent search has failed to reveal adjudications in which they have been considered or 216 PEOPLE EX KKL. v. N. Y. COTTON EXCHANGE. FIRST DEPARTMENT, JULY TERM, 1876. passed upon. The counsel and the court have labored in rain, it would seein, on the subject. Ordered as declared. Order to be settled by BRADY, J. DAVIS, P. J., concurred. DANIELS, J., concurred, except as to denial of costs to respondent*. Order affirmed, without costs. THE PEOPLE EX BEL. JOHN H. ELLIOTT, KESPONDENT, t>. THE NEW YOKE COTTON EXCHANGE, APPELLANT. Corporation Power to adjust controversies between members Improper conduct appeal to court to determine right to membership is not Expulsion of member. Where the charter of a corporation declared its purpose, among other things, to be " to adjust controversies between its members and to establish just and equit- able principles in the cotton trade," and gave it power to make all proper and needful by-laws, not contrary to the Constitution and laws of the State of New York or of the United States; and "to admit new members and expel any member in such manner as may be provided by the by-laws; " and the by-laws provided for expulsion for improper conduct, but did not state what should be considered as such: Held, that there being in the charter or by-laws of the corporation, no express or implied authority to determine who was the owner of a right to a membership in dispute, a member was not guilty of improper conduct warranting his expulsion, for resorting to the courts to prevent the corporation from disposing of such a right claimed by him. That in refusing to submit to a report against his title, a member was not acting in antagonism to the corporate power of " adjusting controversies between its members" or of "establishing just and equitable principles in the cotton trade." That his right to appeal to another tribunal, if to be foreclosed, should be so by explicit contract or agreement (not shown in this case), not by mere construction of language employed in a by-law, or by implication from something contained in it; for forfeitures depend upon clear and explicit language, and are even then looked upon with disfavor, and the presumption should be against the power to expel, except for the causes recognized in the adjudged cases. APPEAL from an order made at Special '\ erm, sustaining a demurrer to a return to a writ of mandamus requiring the defendant, its board PEOPLE EX BEL. v. N. Y. COTTON EXCHANGE. 217 FIKST DEPARTMENT, JULY TERM, 1876. of officers and managers to rescind an order for the expulsion of the relator and restore him to his membership, or show cause, etc. The facts set out in the return were briefly as follows : In 1873 the relator was a member of the Cotton Exchange. John H. Val- entine, also a member, was in default upon a contract, by reason of which default the by-laws provided a proceeding to dispose of his right of membership to make good the amount due upon his con- tracts. While the proceeding was pending, the relator appeared before the appropriate committee having the matter in charge, and made a claim that he owned the right of membership of said John H. Yaleutine, by virtue of a bill of sale. The board of managers thereupon referred the claim of the relator to such right of mem- bership to its supervisory committee, to take evidence upon oath in relation to the claim, and report thereon. Notice of the reference was given to the relator, and he appeared and was personally examined under oath, in relation to his claim. He also called the said John H. Valentine, and caused him to be examined as a wit- ness, to sustain his claim. The committee took the testimony and reported thereon to thu board of managers, who declared the transfer of the membership to the relator void, and gave him notice thereof. It then continued its proceedings against the said John H. Valentine, and directed a sale of his right of membership. The relator thereupon brought an action in the Supreme Court to restrain the Cotton Exchange from selling the said right of membership, on the ground that it was his, and obtained an injunction restraining the sale. All the proceedings of the Cotton Exchange against the relator to expel him were had in pursuance of its charter, by-laws, rules and regu- lations. He put in an answer to the complaint made against him, had notice of the meeting of the committee in reference to the complaint, appeared before it, and admitted before it that he knew the right of membership of John H. Valentine was advertised pur- suant to the resolution of the board of managers, and that the pro- ceedings leading to the advertisement for sale, were done and had in pursuance of the provisions of the by-laws ; that he knew one of the purposes of the Exchange, was to settle within itself contro- versies between members, and that each member bound himself on signing the constitution to abide by all rules, by-laws and regula HUN VOL. VEIL 28 218 PEOPLE EX BEL. v. N. Y. COTTON EXCHANGE. FIRST DEPARTMENT, JULY TERM, 1876. tions of the defendant. The committee thereupon made a report, on receiving which relator was expelled by a vote of fifteen ayes to three nays. William Tracy and William M. Evarta, for the appellant. John A. Foster, for the relator. BRADY, J. : John H. Valentine, a member of the appellant's corporation, was expelled, and it was claimed as a result of that proceeding that his right of membership was forfeited, and became the subject of sale by them. The relator asserted his ownership of that right, and the com- mittee charged with the investigation thereof decided adversely to him. He then commenced an action against the appellants, and obtained an injunction restraining them from selling the right. For this act he was arraigned and expelled. The committee reported on the subject, among other things, as follows : " That John H. Elliott claims to be entitled to said seat through a bill of sale thereof, from said John H. Valentine ; that during the progress of the proceedings, which culminated in the advertisement of the seat of said John H. Valentine for sale, the said John H. Elliott was fully and perfectly cognizant thereof; that prior to the report of your committee, which proposed the resolution directing the sale of said seat, the said John H. Elliott had an opportunity afforded him to prove his claim to said seat, which he essayed to do, but he failed to so establish to the satisfaction of your committee. " That the injunction which John H. Elliott caused to be served upon the Exchange, had for its purpose to prevent a sale of the seat of John H. Valentine, which sale had been directed by a reso- lution of your board, based upon proceedings to that end, done and had in strict conformity with the provisions of your by-laws. We therefore report that, in our opinion, John H. Elliott has been guilty of improper conduct, as alleged in the complaint against him, and that in causing the aforesaid injunction to be served PEOPLE EX REL. v. N. Y. COTTON EXCHANGE. 219 FIRST DEPARTMENT, JULY TERM, 1876. on the Exchange, he has acted in violation of the by-laws and charter of your Exchange, and of the obligations which he assumed when he signed the charter and by-laws, and in contravention of one of the main purposes for which this Exchange was established, 'to adjust controversies between its members.' " We therefore offer the following resolution : "Resolved, That John H. Elliott be, and he hereby is, expelled from membership in the New York Cotton Exchange." The charter of the appellants gives them power to make all proper and needful by-laws not contrary to the Constitution and laws of the State of New York or of the United States, and to expel any member in such manner as may be provided by the by- laws. The by-laws, on the subject of expulsion, contain a section which is as follows : "Section 1. If complaint of improper conduct is made against ft member of the Exchange, it must be in writing, and addressed to the supervisory committee, specifying the particular act complained of, together with all the documentary evidence bearing on the case that the complainant can furnish, together with a list of the wit- nesses he desires to be examined on said complaint." And it is under this by-law only that the power of expulsion is claimed for the cause alleged. The question to be disposed of will be considered on the assumption that the by-law is authorized and in effect. It will be perceived that it is not stated specifically, in any one or more respects in this action, what would or would not be regarded as improper conduct, and the field is open, therefore, to the con- sideration of such acts and to such construction upon them, as the managers present and voting at the meeting and constituting two- thirds may think proper to investigate or adopt. There is neither in the charter of the appellants, nor in the by- laws, however, any express authority to consider and determine who is the owner of a right of membership, which is in dispute. Whatever may be their power over matters directly connected with the business which prompted their organization, or with the adjust- ment of controversies between its members or the establishment of just and equitable principles in the cotton trade, or acquired by voluntary submission to them or their committees under the charter 220 PEOPLE EX REL. u. N. Y. COTTON EXCHANGE. FIRST DEPARTMENT, JULY TERM, 1876. and by-laws, there is no express authority conferred upon them to pass upon the title to a seat among them ; nor is there any thing in the by-laws to which our attention has been called authorizing it incidentally or by implication. They could not, therefore, usurp the power absolutely, to pass upon the relator's claim, and when he resorted to the courts to pre- vent them from disposing of his property, he was not only not guilty of improper conduct, but asserting a right secured to him by the fundamental law of the land. It may be that a member would be bound by the decision of the appellants in specified cases, which being properly the subject of a reasonable by-law, duly authorized, would be recognized as lawful within the principles governing them. (2 Kent's Com., 296 ; Angell & Ames Corp., 247, and cases cited ; People ex rel. Thatcher v. The N. Y. Coml. Assn., 18 Abb. Pr., 271.) The appellant, however, on such subjects, can take nothing by implication. Forfeitures depend upon clear and explicit language, and are even then looked upon with disfavor. Expulsions from a corporation should not be accomplished by hurried and incomplete investigation. A member of a corporation may so hedge himself in by agree- ment as to yield the protection which one seeks in the ordinary affairs of life, and enlarge the authority that may be used against him, but when it is said he has done so, it should appear beyond all reasonable doubt. The presumption should be against the power to expel except for the causes recognized by the adjudged cases ( White v. Brownell, 4 Abbott's Pr. [N. S.], 192), because it is in the nature of a for- feiture, which the law does not favor. The right to appeal to another tribunal, if to be foreclosed, should be so by explicit contract or agreement, not by mere construction of language employed in a by-law, or by implication from something contained in it ; when this power is assumed, and upon either of these elements, and there is any doubt of its existence, it should be rejected in the administra- tion of the law. This seems to be just doctrine. The power should be unquestion- able. When the relator refused to submit to the report against his title, he was not acting in antagonism to the power of the appel- .ant of " adjusting controversies between its members," or of " estab- PEOPLE EX y.iv r. N. Y. COTTON EXCHANGE. 221 FnMT >BPAitTMENT, JULY TERM, 1876. Hairing just and equitable principles in the cotton trade," nor was he rebelling against the judgment pronounced against Valentine, for which express provision was made in the by-laws. He had no controversy with any member or officer. He said simply, you cannot sell the membership of Yalentine because it belongs to me, and I do not admit your authority to dispose of my rights in regard to it. In this he was correct, and the appellant in error. In the case of the People ex rel. Thatcher v. The N. Y. Coml. Assn. (18 Abb. Pr., 271), expulsion was authorized if the member was guilty of willfully violating the charter or by-laws of the association, or guilty of fraudulent breach of contract, or other gross misconduct, and the charge was of obtaining goods by false pretenses. It bears no analogy to the case on hand. Here there is no provision In the by-laws for the trial of the title to a seat, and there is, therefore, in refusing to submit to the report, no violation of the by-laws. There is here no charge either involving moral turpitude or of fraudulent conduct of any kind. The act complained of is one confessedly correct, unless in viola- tion of some compact by which the right to do it was surrendered, which has not been shown as already suggested. The order made at Special Term was for these reasons proper. The representa- tives of the appellants having the matter in charge have acted, no doubt, upon convictions conscientiously entertained both as to their power and the injurious conduct of the relator, but the best of mankind may err in judgment. Order affirmed, with ten dollars costs, and the disbursements of this appeal. DAVIS, P. J., and DANIELS, J., concurred in the result. Order affirmed, with ten dollars costs and disbursements CALVO v. DAVIES. FIRST DEPARTMENT, JULY TERM, 1876. LOUISA F. OALVO, APPELLANT, v. THOMAS A. DAVIES, IMPLEADED WITH OTHERS. RESPONDENT. Principal and surety Mortgage Agreement to extend between holder and grantet ccwnaiuing to assume, made without consent of grantor (mortgagor) discharge* mortgagor. Where a party by deed assumes the payment of a mortgage executed by his grantor, he becomes the principal debtor, and the relation created between him and his grantor is that of principal and surety. Such deed is notice to a subse- quent holder of the mortgage of this relation, and an extension of the time of payment by such holder, even with the express understanding that the bond and mortgage shall remain, in every other respect, unaffected by said agree- ment, when made without the consent of such grantor, discharges him from all liability to the holder of the mortgage. The case of Perkins v. Squires (1 N. Y. S. C., 620), so far as it conflicts with the above, overruled. APPEAL from an order made at Special Term, sustaining a demurrer to a complaint, on the ground that it did not state facts eufficient to constitute a cause of action. The action was to foreclose a mortgage on real property, executed March 8, 1869, by the defendant Thomas A. Da vies to one Augus- tus F. Smith for $9,750, made payable March 8, 1872, in accord- ance with the terms and conditions of a bond accompanying it made by said Davies. The mortgage is now held by the plaintiff by virtue of a certain assignment of the same. The defendant Thomas A. Davies and his wife, Maria Davies, conveyed the mortgaged premises to the defendant Charles P. Leslie, by deed, dated November 29, 1871, subject to the lien of the mortgage ; and the said Charles P. Leslie by the terms of the deed covenanted and assumed to pay the said mortgage. While Leslie was the owner of the mortgaged premises, the plain- tiff, by agreement under seal, dated November 21, 1872, extended the time of the paymon! of f he bond and mortgage until October 15, 1874, providing therein that it was with the express under- standing that the said bond and mortgage should remain, in every other respect, unaffected by such agreement. The defendant Davies, the original bondsman and mortgagor, was not a party to said agreement, and such extension of time wai made without his knowledge or consent. CALVO v. DA VIES. 223 FIBST DEPARTMENT, JULY TEEM, 1876. The plaintiff, in her action to foreclose the mortgage, sought to recover judgment against the defendant Thomas A. Davies upon his bond for any deficiency resulting from the sale of the mortgaged premises. To the complaint the defendant Davies interposed a demurrer, that it did not state facts sufficient to constitute a cause of action. F. R. Coudert, for the appellant. Henry E. & Julien T. Dames, for the respondent. BBADY, J. : The views expressed by Justice VAN BKUNT are correct. The defendant Leslie having assumed the payment of the mortgage executed by the defendant Davies, became a principal debtor, and the relation created between him and his grantor, Davies, was that of principal and surety. The record of the deed of Davies to Leslie was notice of this relation to the plaintiff herein, who holds the mortgage by assignment. It follows that the plaintiff, having extended the time of payment for Leslie, discharged Davies, the principal. (Lawrence v. Fox, 25 N. Y., 268 ; Burr v. Beers, 24 id., 178 ; Billington v. Wagoner, 33 id., 31, and cases cited ; Smith v. Townsend, 25 id., 479 ; Garnsey v. Rogers, 47 id., 233.) The case of Perkins v. Squires (1 N. Y. S. C., 620), so far as it conflicts with this view, is overruled. The decision in that case, though in seeming collision with the conclusion herein expressed, in fact rests upon the proposition that it did not appear by the answer whether the extended period had expired or not. The surety cannot be affected by any reservation contained in the agreement extending the time, unless he consented to it. The rule is absolute, that there shall be no transaction with the principal debtor without acquaint ing the person who has a part interest in it. The proposition that the creditor can enlarge the time of payment and protect himselt by reserving his rights against the surety in the agreement for the extension, cannot be sustained on principle. Such a rule would abrogate the correlative one in favor of tht surety, that his contract cannot be enlarged without his consent. It would be, if the creditor could make a private agreement whn the principal debtor, and legally extend the time of payment bv t reservation, without notice to the surety. 224 BOWERY NATIONAL BANK t>. MAYOR. FIRST DEPARTMENT, JULY TERM, 1876. The order must be affirmed, with ten dollars costs and disburse- ments. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed, with ten dollars costs and disbursements. THE BOWERY NATIONAL BANK, APPELLANT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, RE- SPONDENTS. Injunction restraining city from confirming an assessment no defense against con- tractor entitled to his pay on the wnfirmation, unless diligence is shown to remove it. "Where a contract with the City of New York for paving a street provided that the city would pay in cash, on the confirmation of the assessment to be laid for said work, the whole of the money accruing to the other party under the agreement ; and no assessment had ever been laid for the work, the city and the board of assessors having been enjoined by the court in an action by the property owners from confirming the assessment : Held, in an action to recover the balance due on the contract, that when the defendants were stopped by process from obtaining the funds, all they could demand was a reasonable time to remove the impediment, and the failure to do any thing to remove the injunction rendered them liable for the plaintiff's claim. That it was error for the judge to leave it to the jury to find the fact, whether or not the assessment had not been confirmed because of any collusion, fraud, negligence or other improper act on the part of the defendants, for the facts being undisputed, the question of reasonable diligence was one for the court, and especially where its subject-matter, namely, a law-suit, was one of which the court could take judicial cognizance ; and the plaintiff was entitled to its request that the jury be instructed to render a verdict in its favor. APPEAL by the plaintiff from a judgment in favor of the defend- ants, entered upon the verdict of a jury. George W. Wingate, for the appellant. A. J. Hequier, for the respondents. BRADY, J. : This is the third trial of this action. On the first trial the plain- tiff had judgment which was reversed by the General Term. BOWERY NATIONAL BANK v. MAYOR. 225 FIRST DEPARTMENT, JULY TERM, 1876. A new trial was then had, at which the complaint was dismissed, ind the judgment thereupon was affirmed by the General Term. Their decision thereto was reversed by the Court of Appeals, and a third trial was had in which the defendant obtained a verdict, from which this appeal is taken. On the-second trial it appeared that the defendants contracted with the Hamar Wood Preserved Pave- ment Company, of which the plaintiffs are the assignees, to regulate and pave One Hundred and Twenty-eighth street, from Second to Sixth avenue, for $65,588.40, of which they have paid $46,102.28, leaving due $19,758.12 with interest ; that the usual certificate that there was no fraud in the contract was given by the commissioners under chapter 580, Laws of 1872, which was rendered necessary by reason of some irregularities in the formation of the contract. That by the contract it was stipulated, that the contractor should not be entitled to payment until the completion of the work was certified by the inspectors, the clause relating thereto being as follows : "And by the water purveyor or other officer designated by the said com- missioner of public works, whereupon the parties of the first part will pay, and hereby bind themselves and their successors to pay to the said party of the second part in cash, on the confirmation of the assessment to be laid for said work, the whole of the moneys accru- ing to him under this agreement." That the work was duly performed, and its completion certified by the inspector, December 13, 1870. That the water purveyor caused the work to be entered on his books as completed, December 10, 1870. It also appeared that on January 19, 1871, a preliminary injunction was obtained by property owners, returnable January 25, 1871, restraining the defendants "from laying or confirming any assessment for paving said street, and from doing any act or thing toward making or confirming said assessment, or making the same a lien." That a demand was subsequently made upon the water purveyor for the certificate, who refused, stating " that he was prevented from giving it by this injunction obtained by the property owners." That the assessment for this work was advertised and forwarded to the boards of revision and correction, September 11, 1871, and the matter was referred by them to the Comptroller to assess the HUN VOL. VIII. 29 226 BOWERY NATIONAL BANK v. MAYOR. FIRST DEPARTMENT, JOLT TERM, 1876. expenses upon the property benefited, as required by chapter 580, Laws of 1872, section 5. In addition to these facts the plaintiff proved on this trial as follows: That the papers in the injunction suit were served Janu- ary 24, 1871, and were returnable January twenty-fifth. That the preliminary motion was argued March 20, 1871, but there was no record in the corporation counsel's office of its having been decided. That nothing further was done by defendants until October 24, 1872, when the contract having beconje valid by the action of the contract commissioners, an order was obtained to show cause, on October 28, 1872, why a supplemental answer should not be served in that case, setting up the certificate aforesaid given under the act of 1872 (supra), and the injunction be modified so as to allow the laying of the assessment. That this motion was not regularly argued, but permission was granted " to do what was moved for," and such a supplemental answer was served November 23, 1872. That prior to this the injunction suit had been placed in the hands of special counsel, but nothing further was ever done to vacate the injunction or dispose of the issues, it never having been noticed for trial or placed upon the calendar, up to March 15, 1876. That the case belonged upon the equity calendar of the Common Pleas, which was made up monthly and disposed of every term. That the corporation counsel, his two assistants and managing clerk knew nothing further about the injunction suit. That on Septem- ber 24, 1875, the corporation counsel was notified that as the injunc- tion was used as a defense to the plainliff's claim herein, they insisted it should be disposed of at once, and that he still took no action in regard to it. It also appeared that Mr. Strahan, the special counsel of the defendants in this case, refused to give his reasons why the case was not tried, because the defendant objected, and his refusal was sus- tained by the court. Plaintiff also proved that it was customary among lawyers to notice a case, and place it upon the calendar as soon as the answer was served. And that if not noticed, or put upon the calendar by the plaintiff, it could be dismissed for want of prosecution. The defendants offered no evidence except to prove that the pavement did not last, which was excluded. BOWERY NATIONAL BANK v. MAYOR. 227 FIRST DEPARTMENT, JULY TERM, 1876. It also appears that the court refused to direct a verdict for the plaintiff to which an exception was taken, and left the matter to the jury to be decided as to whether or not these defendants had, prior to the commencement of this action, failed to defend the action in the Common Pleas with sufficient vigor, or had been restrained by an injunction which they could not prevent. This action was commenced March 17, 1873. The action of Tooker, in which the preliminary injunction was obtained, was commenced January 24, 1871, more than two years before this action was brought. February twenty-third, the answer was served. March eighteenth, the action was noticed for trial by the plaintiff. March twentieth, the motion for the injunction was argued. On the 24th October, 1872, the order was obtained by the defendants to show cause why the assessment should not be laid, and a supplemental answer served. November twenty-third, the supplemental answer was served, but nothing further was done. The disposition made of this last order does not precisely appear, but it was admitted by Mr. Strahan, the defendants' counsel, that the defendants obtained what they moved for. This must mean that the motion was in all respects successful. If it were not, then the defendants did not obtain all they moved for. This motion it must also be said was predicated of the validity of the plaintiff's claim, the payment of which was only deferred on account of the assessment not having been finished, and the funds not being in hands, therefore, to pay it. It was shown, as appears from the facts narrated, that it was within the province of the defendants to have ended the action commenced against them by Tooker, by the exercise of ordinary diligence, because it was equitable in character and such cases were disposed of each month in the court in which it was commenced. The defendants had November, December, January, February and until the 17th of March, 1873, to remove the injunction, if it had not already been modified or dissolved, or to initiate some pro- ceeding thereto. The view thus stated as to diligence, is independent of the effect of the motion of October twenty-fourth (swpru\ to obtain such modification of the injunction as to allow the assess- ment to be laid, and which seems to have been granted. The delay of the defendants, thus shown, not only prevented the assessment but it prevented the plaintiffs from obtaining the certifi 228 BOWERY NATIONAL BANK v. MAYOR. FIRST DEPARTMENT, JULY TERM, 1876. cate of the water purveyor, who refused to give it, only because he was restrained by injunction, not for any other reason for aught that appears in this case. This action was tried for the third time on the 15th of March, 1876, and it must be borne in mind that the action of Tocker was then in statu quo, nothing further having been done in it. It must also be borne in mind that the plaintiffs were not a party to it, and could not control it in any way. It should not be forgotten either, that the defendants knew of the plaintiffs' demand, because it was mentioned in the papers prepared on the 17th of September, 1872, and used on the 24th of October, 1872, and acknowledged to be a valid claim against them. When the appeal in this case in the Court of Appeals was decided, it was substantially held, in reference to the certificate of the water purveyor, tha 4 -. the plaintiffs had done all they were required to do, and that the reiVsai to give it under the circumstances was unreason- able. The question involved on this appeal is, whether the laches of the defendants, i\ regard to the Tooker suit, does not deprive them of the defense, that the assessment had not been laid which was contemplated by tho i^i-eament between the plaintiffs' assignor and them. The learned justice pres ; ?\.ag on the trial presented it as a ques- tion of fact to the jury on this xrial, stating to them, that if, in fact, the injunction remained in full vvee at the time of the commence- ment of this action, notwithstanding the exercise of proper dili- gence and effort on their part to obtvi: its removal, they were not liable. The learned justice also suggvLtocl that the question arose as to why the assessment had not been wfirmed, whether it was because of any collusion, fraud, negligent, or other improper act on the part of the corporation. The testimony on this subject, however, wao . ISAAC HAMPTON, APPELLANT. Practice Counter-claim Separate action brought therefor. A party, except in cases commenced in a Justice's Court, having a demand against another can maintain an action therefor, although at the time an action is pend- ing against him by the same party, wherein he could have set up such demand as a counter-claim. APPEAL by the defendant from a judgment entered in favor of the plaintiff on a trial at the Circuit, under the direction of the justice. The action was commenced by Napoleon B. Gardner and Charles T. Inslee, as plaintiffs, against Isaac Hampton. Gardner died pend- ing the action, and it was continued in the name of Charles T. Inslee, as survivor of himself and the said Napoleon B. Gardner, and was brought to recover a balance of $367.03 claimed to be due from defendant to plaintiff's firm on the following facts: In October and November, 1868, the defendant consigned to plaintiff's firm a quantity of wool and also butter to be sold on commission, and drew against the same on plaintiff's firm for the sum of $1,850. After- wards plaintiff's firm sold the property, by the direction and con- sent of defendant, and after deducting expenses, commissions and advances, the defendant was indebted to plaintiff's firm for such balance. The venue of this action was laid in the city and county of New York. The defendant commenced an action against plaintiff's firm, lay- ing the venue in Livingston county where he resided, and claiming to recover damages for misconduct and breach of agreement against plaintiff's firm in reference to the sale of certain wool and butter set forth in the complaint in such action. Such damages were claimed to amount to $1,700. The defendants in that action (plaintiff's firm) answered the com- plaint, denying the same in toto, and setting up matters of defense merely. This last action was referred, on a motion to change place of trial, to Hon. James L. Angle, of Rochester, to try and determine. INSLEE v. HAMPTON. 231 FIRST DEPARTMENT, JULY TERM, 1876. The defendant's action so referred was tried before said referee first, and on such trial plaintiff's firm established their defense set up in their answer, and plaintiff's complaint therein was dis- missed, and judgment on the merits given for plaintiff's firm, with costs. Afterward, and on October 6th, 1874, the issues in this action were tried before Judge DONOHTJE, whereupon the defendant herein interposed a supplemental answer, setting up said judgment upon the referee's report in favor of plaintiff's firm in the action brought by defendant, as a defense to plaintiff's action in this suit. On the trial plaintiff proved all the allegations in the complaint in this action, and that the balance claimed $367.03, with interest from July 8, 1869, amounting to $136.35, in all amounting to $503.38 was due and unpaid. No objection was taken to any testimony given or offered by plaintiff. The defendant then offered in evidence the judgment roll in the suit wherein he was plaintiff, tried before said referee, which was objected to as not being proper evidence in this action, and as immaterial, by plaintiff's counsel. The court admitted it. The defendant asked the court to direct a verdict for defendant. The court refused. Defendant excepted, and the court directed a ver- dict for plaintiff, to which defendant excepted. From the statement in the appellant's points, it would appear that the action by Hampton was the first brought. From that of the respondent, that the one by Gardner & Inslee was the first. H. R. Selden, for the appellant. If. Sheldon, for the respondent. BRADY, J. : The defendant herein commenced an action against the firm of Gardner & Inslee, of which the plaintiff Inslee is the survivor, claiming a sum to be due arising out of shipments of butter and wool to them. They answered, alleging advances upon the prop- erty, the sale thereof, and that the proceeds did not amount to enough to pay the advances and expenses. They did not, however, 232 INSLEE v. HAMPTON. FIRST DEPARTMENT, JULY TERM, 1876. present the excess in their favor either as a set-off or counter-claim. They also commenced this action, which is founded upon the trans- actions mentioned, claiming the excess referred to, to be due to them. It does not appear which of these actions was first com- menced. The referee, in the defendant's action, reported in favor of the plaintiffs herein, finding, among other things, that Gardner & Inslee duly accounted to and with the defendant for the wool and butter and the proceeds thereof, and all of the same. The defendant herein set up the judgment founded upon these findings of the referee, by supplement to his original answer, in which the pendency of his action was interposed as a defense. There can be no doubt that both actions related to and were predicated of the same transactions. There can be no doubt either that the plaintiff herein and his then existing partner could have litigated the claim herein presented in the defendant's action, and taken judgment for it, if it were allowed, because it was the subject of a counter-claim. They did not adopt that course, and the question presented on this appeal is, whether or not the claim is barred by the omission to do it. It seems to be settled in this State by authority. A defendant is not bound in his answer to set up a demand which, from its nature, is a proper subject of a counter-claim. He may elect to enforce its recovery in a separate action. (Halsey et al. v. Carter, \ Duer, 667.) A party having a demand against another may institute an action thereupon, although at the same time an action is pending, brought against him by his debtor, wherein he might set up his demand as a counter-claim. (Lignot et al. v. Redding, 4 E. D. Smith, 285.) Justice INGEAHAM : " We do not think a party having a claim against another is bound to await the tedious motion of such debtor, if he sees fit to commence a suit and then delay its progress so as to prevent the real creditor from obtaining what is due to him." There is nothing in the Code ( 149, 150) requiring the defendant to avail himself of his counter-claim or be precluded from maintaining an action. The preclusion must be confined to the cases specified in the Revised Statutes. (2 R. S., 236, 57.) Welch v. Hazleton (14 How. Pr f , 97) and these cases, are those commenced in Justices' Courts : Douglas v. Hoag (1 Johns, 283, per SPKNCEB, J.) ; Lord v. Ostrander (43 Barb., 339). The cases of Halsey v. Carter and Welch v. Hazleton (supra), are approved in PEOPLE v. KINGSLEY. 283 FIRST DEPARTMENT, JULY TERM, 1876. Gillespie v. Torrance (25 N. Y., 310). It is not necessary to con- sider what would be the legal result if the plaintiff and his partner, had pleaded their counter-claim in the defendants' action, because it was not done. They answered by denying the defendants' cause of action and succeeded. For these reasons the judgment must be affirmed, with costs. DAVIS, P. J., and DANIELS, J., concurred. Judgment affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT*, v. WILLIAM C. KINGSLEY AND OTHERS, RESPONDENTS. THE PEOPLE OF THE STATE OF NEW YORK, APPELLANTS, v. WILLIAM A. FOWLER AND OTHERS, RESPONDENTS. Acts done virtute ojftcti Venue change of when right to, absolute and not discretionary. An action against a public officer for acts done virtute offlcii must be brought, ao far as he is concerned, in the county where the cause of action, or some part thereof, arose. It is an absolute right, and not a matter of judicial discretion, and he cannot be deprived of this statutory right by joining other parties as defendants. The venue must first be correctly laid, and then the usual incidents of an action may occur ; and a motion may be made, after issue joined, to change the place of trial, on the ground of the impossibility of obtaining an impartial trial in the county designated ; but this ground is no answer to a motion before issue joined to change the venue, where the proper county has not been desig- nated in the complaint APPEALS from orders made at Special Term, changing the place of trial. The actions were both brought in the city and county of New York (in both the defendants were, some of them, public officers in the county of Kings, and the others certain contractors for what is known as the Hempstead reservoir), to recover from them certain moneys, alleged to have been obtained by such contractors by the corrupt collusion and confederation of such officers, with the said contractors. HUN VOL. VIII. 30 234 PEOPLE v. KINGSLEY. FIRST DEPARTMENT, JULY TERM, 1876. The following is the opinion of BARRETT, J., referred to in the opinion of BRADY, J., below : BARRETT, J. 1. The question is not whether the defendants Fowler, Lowber and Bliss were public officers within the meaning of the Constitution, but whether they were such as are contem- plated by section 124 of the Code. That they were public officers in the latter sense there can be no doubt. Their duties were essen- tially public, and they were even required by law to take ati oath of office, and to furnish bonds for the faithful performance of their duties, as permanent water and sewerage commissioners. (Laws of 1869, chap. 97, 2.) 2. The acts complained of were clearly done by these defendants in virtue of their offices. It was wholly from such offices that they derived the authority to do what is charged against them and that is the test. It is not a question of good or bad faith, and the proposition that the statute covers cases of neglect or ineffi- ciency alone, is not sustained either upon principle or authority. On the contrary, it is well settled that even where, in doing an act within the limits or scope of his authority, the officer exercises such authority improperly or abuses the confidence which the law reposes in him, he is still entitled to the protection of the statute. {Brown v. Smith, 24 Barb., 419 ; The People v. Hayes, 7 How., 248 ; Seek/ v. Birdsall, 15 Johns., 268; The People v. Tweed, 13 Abb. [N. S.], 419, which is directly in point, and is decisive of this motion.) Even allegations of malice and " wicked combina- tion " will not deprive a public officer of the protection of such statutes. (Row v. Sherwood, 6 Johns., 109.) And upon principle this is the just rule, for otherwise the statute would always be evaded by a mere averment of bad faith, e. g., that a sheriff levied on A.'s goods under execution against B., and did it in bad faith, well knowing them to be A.'s goods. 3. In one of the cases under consideration, the cause of action rose in Kings county ; in the other, some part thereof, indeed the substantial part thereof, arose there. 4. The defendants cannot be deprived of their statutory right by joining other parties as defendants. The right is absolute, and not % matter of judicial discretion. If, therefore, a public officer be PEOPLE v. KINGSLEY. 235 FIRST DEPARTMENT, JULY TERM, 1876. impleaded for acts done virtute affioii, the suit so far as he is concerned must be tried in the county where the cause of action, or some part thereof, arose. Any other rule would tend to nullify the statute ; for it would be as easy to join other parties defendant as to plead bad faith, and that, too, without intending to evade ; as, for instance, to join with a sheriff defendant, the plaintiffs in the execution, who directed, or the indemnitors, who upheld the levy. 5. Lastly, we are asked to retain these cases, because it is claimed that a fair jury trial cannot be had in Kings county. But that is no answer to the motion. Issue has not been joined, and we can- not tell whether there will be a jury trial. For aught we know, the defendants may demur. The first thing to be done is to place the causes in the county where, by law, the defendants have a right to have them. When an issue of fact is there joined, it will be time enough to invoke subdivision 2 of section 126 of the Code. Mason v. Brown (6 How., 481), is not in point, for the reason that issue had there been joined ; but it is an authority for the rule that motions to change the place of trial for the convenience of witnesses can only be made after issue joined. The same principle applies to motions to change the venue, because there is reason to believe that an impartial trial cannot be had. The motion to change the place of trial to the county of Kings must be granted. John E. Parsons, for the appellant. Roger A. Pryor, for the respondents. BRADY, J. : It is necessary to add but little to the opinion of Justice BARRETT, rendered by him on deciding the motion to change the venue in these cases. Although acts of fraudulent combination are charged against the defendants to accomplish a condition of things leading to the formation of the contract ultimately made with Kingsley and Keeriey, nevertheless the gravamen of the complaint begins with the conduct of the defendants while acting officially, because prior to that time the alleged scheme had not been consummated, And could not be without the contract which was made. The same observation applies to the Hempstead reservoir. The contemplated fraud in reference thereto was not initiated 236 PEOPLE w. KINGSLEY. FIRST DEPARTMENT, JULY TERM, 1876. nntil Keeny obtained the contract alleged. It is, it may be said, wholly immaterial whether these contracts were the result of a combination antecedent to the passage of the acts of May 5, 1870, and February 18, 1871, and the action of the common council, or subsequent thereto, if characterized properly. The defendants' responsibility for that violation of duty would be the same. The acts which form the basis of the charges pre- sented by the complaint were committed virtute qfficii. The defendants were acting as public officers within their official sphere, within the scope of their authority, when the contracts were made, and this, as shown by Justice BARRETT, secures to them the right given by section 124 of the Code. It is no answer to an application for the privilege accorded by this law, that the plaintiffs cannot have a fair trial in Kings county. This view, which is expressed by Justice BARRETT, is sustained by the authorities. (Moore v. Gardner, 5 How. Pr., 243 ; Wood v. Hollister, 3 Abb. Pr., 16, note; Hubbard v. National, etc., 11 How. Pr., 149 ; The International, etc., v. Sweetland, 14 Abb. Pr., 240; People v. Tweed, 13 Abb. [N". S.], 426.) Where the impossibility of obtain- ing an impartial trial is the ground of a motion to change the place of trial, it should not be made till after issue joined. (2 Wait's Pr., 630, and cases cited.) The reason of the rule relates, it is true, more to the form, perhaps, than the substance. It is that the action must be placed first in the proper county. The starting point must, in other words, be correctly designated, and then the usual incidents of an action may occur. When the cause is transferred to Kings county, therefore, the plaintiffs may then in turn ask for a change of the place of trial to some other county, in which there will be no prejudice from which they can suffer. The cause must be at issue then, how- ever, which is not the case now, and the character of the issues may require serious considerations in determining the propriety of another change of the place of trial. For these reasons, we think the order appealed from must be affirmed, with ten dollars costs, and the disbursements of the appeal. DAVIS, P. J., and DAOTKLS, J., concurred. Order affirmed, with ten dollars costs and disbursements. HAUCK v. CRAIGHEAD. 237 FIRST DEPABTMENT, JULY TEEM, 1876. MINNIE HAUCK, APPELLANT, v. SAMUEL CRAIGHEAD AND OTHERS, EXECUTORS, ETC., OF SAMUEL N. PIKE, IltfPLEADED WITH LAFAYETTE HARRISON, RESPONDENT. Signature on margin disputed effect of liability thereon to be submitted on proof to the jury. P., not mentioned in the body, signed his name upon the margin of an agreement, executed at its foot by H. Held, that such signature did not express what par- ticipation in the obligation P. meant to take, whether as surety, guarantee or original contractor, but it might, perhaps, with propriety be said, that it was evident from his in no way expressing any other obligation or intention, thai he intended to bind himself as a joint contractor. Where the complaint was originally in form on guarantee, but an amendment allowed on the trial charged P. as an original joint contractor, rendering it necessary for the plaintiff to establish by competent proof that such was his relation, because his signature was by indorsement and not by subscription to any expressed obligation of any kind, and evidence having been given to show why P. signed the paper where he did, and in that way to show what he meant to assume, or what, in other words, was his relation to the contract, held, error, to decide that the action turned upon a question of law and to dismiss the complaint as to P. on the ground of misjoinder, holding the con- tract to have been made by P. as guarantor. That the plaintiff was entitled to have the issue whether or not P. was a joint contractor with H., created by the amendment allowed upon the trial, passed upon by the jury. APPEAL from a judgment at the Circuit, dismissing the plaintiffs complaint. The action was commenced by the present plaintiff by her guardian ; but since that time, she having arrived at majority, it has been continued in her own name. Samuel N. Pike, one of the original defendants, died since its commencement, and his executors have been substituted in his stead. Its object was to enforce the liability of the original defendants, Harrison and Pike, on a contract purporting on its face to be made between the plaintiff and the defendant Harrison only, but upon the margin of which Pike affixed his name. The following is a copy thereof: " Copy contract. * Memorandum of an agreement made this day, February 18, 238 HAUCK v. CxiAlGHEAD. FIRST DEPARTMENT, JULY TEKM, 1876. 1868, between Lafayette Harrison and Miss Minnie Hauck, u follows : " Miss Minnie Hauck engages herself as prima donna asoleta, for operas and concerts, for the term of two months, from the 24th of February, 1868. " Miss Minnie Hauck obliges herself to conform to all the rules and regulations of the theater. " Mr. Harrison obliges himself to pay Miss Minnie Hauck the sum of $1,400 per month. \ 2 Shfc, \ " L F. HAKKISON. ^ " It is also understood and agreed that Miss Hauck shall sing at least three (3) times in each week, all extra performances to ^ be paid at the rate of one hundred dollars ($100) per perform- ^ ance. S " It is also agreed that the salary shall be paid in each and OQ every week." The complaint originally alleged that the said Pike " indorsed ' the contract and became responsible for the performance of the same by the said Harrison. The case first came on to be heard, October 24, 1874, before Justice DONOHUE and a jury, and upon an inspection of the complaint and the contract, the justice thought the complaint alleged a guarantee which was unsustained by the contract. Plaintiff's counsel thereupon moved for leave to amend the com- plaint, and the justice allowed him to withdraw a juror with leave to apply at Chambers for such amendment. A motion was made at Chambers for leave to amend, it was denied, and an appeal was taken, and the General Term held that the amendment should have been allowed. The case then came on for trial again before Justice LAWRENOB and a jury. The complaint was amended at the trial by the justice, go as to allege a joint contract, but the justice held that Pike was a guarantor, and that being so there was an improper joinder, and he therefore dismissed the complaint as against the execnton of Pike. HAUCK v. CRAIGHEAD. 239 FIRST DEPARTMENT, JULY TERM, 1876. George V. N. Baldwin, for the appellant. FransioU, Tilney <& Mosher, for the respondents. BRADY, J. : This action against the executors of S. N". Pike was, in form, on his guarantee for the performance of the agreement on the part of the defendant L. F. Harrison, which the latter made with the plaintiff. The amendment which was allowed at the trial changed the cause of action, and charged the decedent, Pike, as an original contractor or promissor, and rendered it necessary for the plaintiff to establish, by competent proof, that such was his relation to her. It was so, because the signature of Pike was by indorsement, and not by sub- scription to any expressed obligation of any kind. The defendant has not appealed from that proceeding, and it stands intact to be considered as part of the case, with all the ben- efit to the plaintiff to be derived therefrom because the defendant succeeded. The plaintiff, after the amendment, proved by parol, under objection and exception, what occurred prior to the execution of the agreement between her agent and Mr. Pike, and it appeared that the plaintiff refused to make the contract with the defendant Harrison alone, and said, through her agent, that if Mr. Pike would not join in the contract none would be made. Mr. Pike then said he would accede to her wishes, and signed his name by writing it upon the margin of the agreement. The indorsement or signing by Mr. Pike upon the margin of the agreement does not express what participation in the obligation of Harrison he meant to take, whether as surety, guarantor or original contractor. The evidence thus given was not to vary or contradict the agree- ment, but to show why it was that he signed the paper where he did, and in that way to show what he meant to assume ; what, in other words, was his relation to the contract. If he had subscribed the agreement, there is no doubt on adjudged cases (Parkes v. Brinkerhqff, 2 Hill, 663 ; Baker v. Rollins, 2 Denio, 136), that he would be liable as originally and jointly bound. The name being at the foot of the agreement would leave no doubt of it. In the former case, Justice COWEN said : " If it were ambiguous, it is 240 HAUCK v. CRAIGHEAD. FIRST DEPARTMENT, JULY TERM, 1876. by no means clear that it might not be made available by extrinsic evidence." In the latter case, which was an agreement in refer- ence to shingles, Chief Justice BRONSON said : " In the body ol the instrument Clark alone is mentioned as the contracting party but it is evident from the names subscribed to it, without resorting to the extrinsic evidence, that Hurd also intended to bind himsell as a joint contractor with Clark, and the intention of the parties, when it can be gathered from the writing and is not contrary to law, must be carried into effect." It might, perhaps with propriety, be said, that it is evident from the paper itself that the decedent, Pike, intended to bind himself as a joint contractor because he signed the agreement, and in no way expressed any other obligation or intention. The cases cited, it must be conceded, are not entirely like this, but the difference consists only in the position of the signature, and this seems too unimportant to change the principles announced. It may be said that, strictly, the only parallel for this case is, where a person writes his name on the back of a note not negotiable, the legal consequence of which is that he may be held as maker or guarantor. (Richards v. Waring, 1 Keyes, 576 ; Moore v. Cross, 19 K Y., 227.) Here, unless some interpretation is given to the signature of Mr. Pike, he assumed no liability, because there was, as already said, nothing written over it. If the plaintiff had the power to overwrite the name of Pike with a contract implied by law, or recover against him as an original contractor or guarantor, then the amendment was unobjectionable, because it only expressed his obligation, and parol evidence to sus- tain it, could not affect the interests of his estate, while it sustained the legal result predicated of his signature in the place mentioned. There is no distinction between a note and an agreement recognized. In the cases in 2 Hill and 2 Denio (supra\ the rule was applied to both. They rest on the same principles, and should be governed by the same rule. It is quite clear that the decedent meant to be bound in relation to Harrison's contract, and if the plaintiff could regard him as an original contractor or guarantor, the view of the learned justice at the trial was erroneous, and a new trial should be granted. STEWART v. ALDRICH. 241 PIBST DEPARTMENT, JULY TERM, 1876. The decision heretofore rendered in this case on the appeal in reference to a contemplated amendment does not affect the question under discussion. It was only intended by that decision to pass upon the propriety of the order appealed from. It was not designed to limit the plain- tiff's cause of action or remedy to what was then revealed. The plaintiff was entitled to have the issue passed upon created by the amendment allowed upon the trial, namely, whether or not the defendants' testator was a joint contractor with Harrison, and there must therefore be a new trial, costs to abide event. DAVIS, P. J., and DANIELS, J., concurred. Judgment reversed and new trial ordered, with costs to abide event. DAVID STEWART, PLAINTIFF, v. HERMAN D. ALDRICH, DEFENDANT.* Party watt covenant by grantee to assume agreement as to similar in principle to assumption of mortgage. Where a deed was executed and delivered, conveying premises subject to a party wall agreement, made between the grantor and the owner of adjoining premises. Held, that the burden was, by express covenant, transferred to the grantee, and he assumed it, and the covenant to pay for the party wall, when used, became united with, and formed part of the consideration for which the land was parted with. That there was no difference between a covenant to assume an obligation of a party wall agreement, and one assuming the payment of a mortgage. SUBMISSION of case under section 372 of the Code. The plaintiff, Stewart, owned lot No. 604, and one John N. Hayward owned lot No. 602, on Broadway, and the lots adjoined. In June, 1853, Hayward and Stewart, when Stewart was about to rebuild, made a contract that the new wall should be a party wall between said lots. Stewart was to build the new wall on the dividing line, one-half to be on the land of each party ; the founda- tion to be at least twenty-tour inches thick at base, etc. Hayward, " his heirs and assigns," were to be ** at liberty at any * See McDonnell v. Quher, ante, p. 155 HUN VOL. VIII 31 242 STEWART v. ALDR1CH. FIRST DEPARTMENT, JULT TERM, 1876. time to use said wall, or a part thereof, upon paying to the party of the first part (Stewart), a moiety or half part of the then value of said wall, or of the part so used, and uot otherwise." Stewart built the wall at his own expense, according to the contract, in 1853. The contract was duly acknowledged by both, and recorded September 20, 1853, in book 648 of conveyances, page 349. In 1857, Hayward sold to the defendant, Aldrich, with full covenants of warranty and in fee, and the deed was delivered and recorded. The deed contained this clause, " subject, nevertheless, to a party wall agreement made between the said John N. Hay- ward and the owners of the building on the lot No. 604 (six hundred and four) Broadway, next adjoining to the north of the premises above described, which party wall agreement, the party of the second part hereto, hereby agrees to assume." The defendant, as owner under said deed, took possession of and used a portion of said party wall, of the agreed value of $1,955, of which one-half, viz., $977.50, had been demanded of the defendant by the plaintiff, as due under said contract and deed ; and, though admitting such use, and that he still owned such lot, the defendant refused to pay, and insisted he was not liable. D. B. JEaton, for the plaintiff. Edwin S. J$abcock, for the defendant. BBADT, J. : The deed by which Hayward conveyed the premises to the defend- ant, subjected the estate created to the party wall agreement made between him and the plaintiff, and the defendant agreed to assume it, that is to say, he agreed when he used the party wall to pay for it, just as his grantor had agreed to do by the agreement mentioned. Whatever may have been the result of " wandering into the region of learned speculation" to which the counsel for the defendant refers in his points, the legal proposition stated is one which must at once strike the untutored and should find a warm embrace in the learned mind. The defendant's grantor acknowledged and respected his own obligation and when he conveyed the property, did so with that obligation as a burden upon it. The duty thus imposed upon the defendant was a part of the consideration for the purchase, just STEWART v. ALDRICH. 243 FIKST DEPARTMENT, JULY TERM, 1876. as much so as the assumption of a mortgage executed by the grantor would have been. The grantor was equally bound to discharge it. He could not avoid the covenant. If he had used the wall he would be required to pay the sum agreed upon. (Brown v. Punts, 11 N. Y. Legal Obs., 24; Sherred v. Cisco, 4. Sand. S. C., 480.) The case of Cole v. Hughes (54 N". Y., 444) is not at all in conflict with this view. There was nothing more than constructive notice of the party wall agreement charged against Hughes, no assumption of any agreement in relation to it, or any express or implied obligation to be bound by it. The court said in that case, however, " there is a wide difference between the transfer of the burden of a covenant running with the land and of the benefit of the covenant, or, in other words, of the liability to fulfill the covenant and of the right to exact its fulfill- ment. The benefit will pass with the land to which it is incident, but the burden or liability will be confined to the original cove- nantor, unless the relation of privity of estate or tenure exists, or is created, between the covenantor and covenantee at the time when the covenant is made." When the deed was executed the burden was by express cove- nant transferred to the defendant, and he assumed it. The covenant to pay for the party wall when used, became united with and formed a part of the consideration for which the land was parted with between the defendant and his grantor, and this, as already sug- gested, makes the defendant liable. Hurd v. Curtis (19 Pick., 459) ; Sherred v. Cisco (supra) do not reject, but recognize this principle, and it would be a very extraordinary departure from familiar and established rules, if they did not. There is no differ- ence between a covenant to assume the obligations of the party wall agreement and one assuming the payment of a mortgage. The discussion of a question so simple in its legal and equitable aspects seems to be unnecessary. The plaintiff should have judgment for the amount agreed upon DAVIS, P. J., and DANIELS, J., concurred. Judgment ordered for plaintiff for amount agreed upon. MEMORANDA OF OASES NOT REPORTED IN FULL NORMAN HUBBARD AND GEORGE WHITTAKER, PLAIN- TIFFS, v. JAMES O'BRIEN, SHERIFF OF THE Omr AND COUNTY OF NEW YORK, DEFENDANT. Acceptance what sufficient to vest title Goods manufactured to order payment f price after seeing them, and direction to ship transfers title. EXCEPTIONS ordered to be heard, in the first instance, at General Term, on a judgment directed for the defendant at the Circuit. The suit was brought by the plaintiffs to recover possession of an iron rod seized by the defendant under an attachment against one George E. Reynolds, of Bristol, Pennsylvania. The plaintiffs are machinists ; and, having to build a large engine, entered into an agreement with Reynolds, whereby he was to manufacture for them certain heavy parts of the engine, including the rod seized. Some of the articles were delivered ; and on the 16th day of December, 1868, before the delivery of the rod seized, Reynolds came to the plaintiffs, stated that the rod was finished, and was at the shop of Neatie & Levy, in Philadelphia ; that said firm had done the finishing of the rod, and would not deliver it till their claim upon it for their work was paid, and that he wanted the money. To this the plain- tiffs finally assented, giving Reynolds their note for the whole price of the rod, which was paid by them February 27, 1869, and Rey- nolds at the same time giving the plaintiffs the bill for the rod, and giving tnem a receipt for the same in their receipt book. The rod still not coming forward, the plaintiffs went to Neafie & Levy, at Philadelphia, and saw the rod there finished and ready for delivery. But Neafie &Levy refused to deliver the rod to plaintiffs, claiming that Reynolds had not paid their lien upon it. The plaintiffs, to obtain possession of the rod, paid Neafie & Levy their claim, and HUBBARD v. O'BRIEN. 245 FIRST DEPARTMENT, JULY TERM, 1876. the latter, in accordance with plaintiffs' instruction, shipped the rod to plaintiffs, at New York, giving plaintiffs the bill of lading for the same. On the arrival of the rod at pier No. 2, New York, the same was seized by the sheriff under an attachment against Reynolds. The court directed a verdict for the defendant, on the ground that the title to the rod had never passed to the plaintiflfe The plaintiffs requested the court to direct a verdict for the plain- tiffs, which the court refused ; and also asked to go to the jury on the question, whether the transactions of December sixteenth were a sale, which was also refused. To the court's direction and its refusals plaintiffs excepted. The court at General Term say : " It appears from this statement that the rod was seen by the plaintiffs in Philadelphia, and by their direction sent to them after the payment by them of the lien of Neafie & Levy. This was the acceptance of the rod, and an exer- cise of ownership over it. They had already given their note for the price of it to Reynolds under his promise to pay Neafie & Levy and to send it on to them. Whatever right they might have had to reject it was waived when they paid the lien of these workmen, and directed it to be shipped to them. "When an article is manu- factured, it is true that the title does not vest in the person for whom it is made until it is finished and delivered, or ready for delivery, and approved by him. (Andrews v. Durant, 11 N. Y., 35, per DENIO, J. ; William? v. Jackman, 16 Gray [82 Mass.], 517.) If the title to the article veced absolutely in the person ordering it, it would necessarily follow that he must accept it, and he would thus be deprived of the right to say that it was not completed, or not made in accordance with the contract relating to it, and also of the right of refusing, therefore, to accept it. If, however, the arti- cle being finished, he accept it and pay for it, and direct its trans- portation to him, there can be no doubt that the title passes at once. (Cases supra.) The doctrine of acceptance and approval is chiefly necessary for the protection of persons ordering the manufactured article. The presumption must be that the manufacturer is content to deliver, and when the minds meet by completion and acceptance or approval, and the price is paid in any manner agreed upon, the title passes and the property is at the risk of the vendee, unless there be 246 HUBBARD v. O'BRIEN. FIBST DEPARTMENT, JULY TKKM, 1876. something special intervening to prevent the application of the rule as to risk. The risk follows the title. It is not thought requisite to enter into any elaborate discussion of this subject. The cases 8Uj.rra, and those hereafter cited, make the conclusion on which this opinion is based unassailable. (Terry v. Wheeler, 25 N. Y., 522; RusseU v. Carrington, 42 id., 119; Cross v. O'Donnett, 44 id., 661 ; Brewer v. Salisbury, 9 Barb., 512.) The position of the defendant rests on the assumption that the agreement was not ended or completed, or the property vested either because the rod was not finished or accepted or delivered ; and if the facts warranted this attitude, it might be troublesome, if not impossible, to disturb the judgment. In this he is in error. The rod was finished. It was accepted, paid for, and delivered. The delivery to the carrier, in accordance with the plaintiffs' instruc- tions, was a delivery to them. They had the right to direct the transportation of the rod, because they had paid for it, and by dis- charging the lien of Neafie & Levy they had removed the only obstacle to their complete possession and ownership. This case differs, therefore, widely from that class of cases which hold that goods ordered to be made, do not become the property of the per- son directing their manufacture until they are completed and accepted and delivered. For these reasons there should be a new trial. Ordered accordingly, with costs to abide event." E. M. Cullen, for the plaintiffs. A. J. Vanderpoel, for the defendant. Opinion by BBADY, J. ; DAVIS, P. J., and DANIELS, J., concurred. New trial ordered, costs to abide event. N. Y. BALANCE DOCK CO. v. MAYOR. 247 FIRST DEPARTMENT, JULY TERM, 1876. THE NEW YORK BALANCE DOCK COMPANY, RESPOND- ENT, v. THE MAYOR, ETC., OF NEW YORK, AND THE DEPARTMENT OF PUBLIC CHARITIES AND COR- RECTION, APPELLANTS. Department of public charities and correction, New York can neither sue nor be sued. APPEAL from a judgment entered at Special Term in favor of the plaintiff against the defendants. The plaintiff seeks to recover in this action a balance due for work done upon the school-ship Mercury. The bill for the whole service has never been disputed. It was duly certified to the comptroller for payment by the commissioners of charities and correction, by whom the plaintiff was employed, and a bill or requisition for its amount was presented to him on the 24th of May, 1873, at which time the amount to the credit of the depart- ment of the commissioners named was more than sufficient to pay it. On the 18th of March, 1875, there was an unexpended balance of the appropriations for 1873, amounting to the sum of $1,392.47, which was paid on account of the plaintiff's claim, which was thus acknowledged to be correct. The court at General Term say : " With this array of fact, it seems strange that the interposition of any defense should have been considered necessary. The proposition that the appropria- tion was exhausted when this action was commenced, is hardly worthy of serious consideration in face of the fact, that when the plaintiff's claim, justly due, was presented for payment, and when it should have been paid, as this action demonstrates, there was an excess of funds belonging to the appropriation over and above its amount. " It then became the duty of the comptroller, at once, to set aside the amount necessary to meet it, if, for any just reason, its payment was to be deferred, for the requisition mentioned was an equitable assignment pro tanto of the funds of the department of which he was the depositary. (Hall v. City of Buffalo, 1 Keyes, 193 ; Parker v. City of Syracuse, 31 N. Y., 379.) This defense fails utterly. 48 N. T. BALANCE DOCK CO. v. MAYOR. FIRST DEPARTMENT, JULY TERM, 1876. There is, however, substance in the proposition that the commis- sioners of charities and correction should not have been joined in this action, and that judgment should have been in their favor. " They constitute only a branch of the city government, a part of the municipality appointed by its officers, with some independent powers, but nevertheless in the main, subservient to and under the supervision and control of the general government. They have no corporate rights. They can neither sue nor be sued. They form a department merely as suggested, for the expense of which the city government provides, but they make no payments other than by requisition or drafts upon the sums appropriated to their use, and held for them by the defendants, The Mayor, etc., which are to be honored by the comptroller in the manner prescribed by law. (Chap. 510, Laws of 1860 ; chap. 335 [Charter], Laws of 1873, 25, 26, 27, 28, 29, 90, 91, 112.) " The independent powers exercised are conferred to enable the municipality more perfectly to discharge its varied and important duties, and to that end the commissioners are required to make proper estimates of the money needed, and in the several matters pertaining to their domain to do what is authorized, drawing upon the fiscal officer of the corporation to the extent only in the aggre- gate of the sums appropriated for their use, being thus restricted in expenditure to prevent useless or extravagant outlays. " When, therefore, the requisition was made for the plaintiff, or the bill certified to be correct by the commissioners in the usual manner, they did all that they could be called upon to do for the plaintiff, and no action or proceeding was necessary or proper against them. " The duty was then cast upon the finance department to examine and pay the bill, or to resist its payment, if there existed any good reason why it should not be paid. If no such reason existed, it should have been paid. " The result of these views is, however, that the judgment must be reversed as to the commissioners, and affirmed as to the defendants The Mayor, etc." Wm. C. Whitney, for the appellants. R. W. De Forrest, for the respondent. MERCHANTS' BANK v. UNION R. R. & TRANS. CO. 249 FIRST DEPARTMENT, JULY TERM, 1876. Opinion by BBADT, J. ; DAVIS, P. J., and DANIELS, J., concurred in result. Judgment reversed as to commissioners and affirmed as to The Mayor, etc. THE MERCHANTS' BANK OF CANADA, RESPONDENT, v. THE UNION RAILROAD AND TRANSPORTATION COMPANY, IMPLEADED WITH THE PACIFIC MAIL STEAMSHIP COMPANY, APPELLANT. Several bttts of lading Delivery of goods the holder of which Mil entitled to. APPEAL by the defendant from a judgment entered upon a verdict in favor of the plaintiff, by direction of the court. In February, 1873, the firm of Ritchie, Gregg, Gillespie & Co., merchants, of Montreal, applied by letter to the plaintiff, a bank- ing institution of the same city, for a credit of 10,000 sterling, in favor of their agents, Charles Thorel & Co., at Yokohama. Such credit was to be availed of by the latter by their drafts upon the London agents of the plaintiff, the London Joint-stock Bank, the plaintiff having arranged that the latter should accept such drafts on the hypothecation by the drawers (Thorel & Co.) of the teas purchased by them in Yokohama for Ritchie, Gregg i Gillespie & Co. Six hundred and seventy-six packages of tea were shipped to New York by Thorel & Co., deliverable to order of shipper, as per bill of lading. The plaintiff's manager testified that the plain- tiff procured and made an advance upon the 676 packages of tea mentioned in the bill of lading ; that the plaintiff received the bill of lading, invoice and consular certificate from the London Joint- stock Bank, in order that the plaintiff might collect or realize the smount of the invoice, and therewith retire or pay the draft of the shipper, for the payment of which the plaintiff held the bill of lading. He also testified that the plaintiff paid the amount of the draft to the London Joint-stock Bank, retaining the bill as its security for the amount. The bill of lading, however, contained HUN VOL. VIII. 32 250 MERCHANTS' BANK v. UNION R. R. & TRANS. CO. FIRST DEPARTMENT, JULY TERM, 1876. a statement that the agent of the steamer had signed five bills oi lading all of the same tenor and date, one whereof being accom- plished, the others were to stand void. Shortly after their arrival in New York by the det'endant's conveyance, the defendant deliv- ered the teas to Thomas Rigney & Co., who had one of the bills of lading, upon receiving the written guarantee of that firm, indorsed on their bill of lading, that they would deliver to defend- ant " the regular Mil of lading, indorsed for the within teas, ao soon as the same reached us." The court at General Term say : " It is assumed that the title to the teas was in Charles Thorel & Co., and that the mere posses- sion of the unindorsed bill of lading by the plaintiff was not sufficient evidence of the transfer. The point thus taken is ingeniously put and argued, but the authorities do not sanction it. The rule is settled in this State, that the transfer of a bill of lading without indorsement is a symbolical delivery of the goods; that the property in it may be conveyed by such delivery, and be good against all the world except an innocent indorser for a valuable consideration. (Nathan v. G-iles, 5 Taunt., 558 ; Bank of Rochester v. Jones, 4 N. Y., 497 ; Cayuga Co. Nat. Bank v. Daniels, 47 id., 631 ; Marine Bank v. Wright, 48 id., 1 ; First Nat. Bank of Cincinnati v. Kelly, 57 id., 34 ; Allen v. Wil- liams, 12 Pick., 302.) It is tme that the delivery of the bill must be with intent to pass the title, and that there must be some evidence to sustain that element. The arrange- ment macle with the plaintiff in reference to the advances, provided for the delivery of the bill of lading as a security therefor, and their possession of it, after the advances, and of the invoice and consular certificate, which they also had, made it presumptive evidence that it was delivered for the purpose con- templated. There is no evidence to the contrary. * * * " The defendants were acting, therefore, with full knowledge and under guarantee. They cannot cut off the plaintiffs, who are bona fide holders for value, without notice. The defendants' counsel referred to the case of Fearn v. Bowers (cited in Lickbarrow v. Mason, 1 Sm. L. C. [7 Am. ed.], 1162), and to The Tigress (Brown . ELY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. proof, as to the master's knowledge or culpability in lacking knowledge, rests upon the plaintiff. (Kunz v. Stewart, I Daly, 431 ; McMilland v. Saratoga, etc., R. R. Co., 20 Barb., 449 ; Shearman & Redfield on Negligence, 99 ; Buzzell v. Laconia Mfg. Co. 48 Maine, 113.) In all cases in which it is necessary to prove a scienter, in order to sustain the action, the complaint, to be good, must allege such scienter or knowledge on the part of the defendant. (Van Santvoord's PI., 286 ; 1 Chitty PL, 403, and 3 Dowl., 769.) Knowledge on the part of the defendant of the danger and risk, is the gist of the action. (Looman v. Rockaway, 28 How., Pr., 472 ; 25 N. Y., 566.) The plaintiff knew the condition of the house, and voluntarily assumed the risk, whatever it was, with full knowledge of its extent, and consequently had no cause of action. (Bird v. Holbrook, 15 Eng. Com. Law Rep., 91, 93-96 ; Loomis v. Terry, 17 Wend., 498, 499 ; Hartfield v. Roper, 21 id., 618, 619 ; Shearman & Redfield on Negligence, 88; 30 Barb., 229; 5 Ohio St., 541 ; Wright v. N. T. C. R. R. Co., 25 N. Y., 567, 568 ; Ryan v. Fowler, 24 N. Y., 416; Cruty v. Erie Railway Co., 3 N. Y. S. C., 245.) i BOCKES, J. : For the purpose of this appeal, the following may be assumed as the facts of the case, to wit: 1. That the defendant employed the plaintiff to whitewash a house in which one Fanny Davis had recently died of the small pox. 2. That the defendant was a physician and attended such person during her sickness and until her decease, and knew that she had such contagious disease, and that she died of it. 3. That he assured the plaintiff that the house had been thoroughly disinfected, and that he would be entirely safe in entering and whitewashing it. 4. That the plaintiff entered and whitewashed the house under the defendant's employment; con- tracted the disease therein and remained sick for a considerable time, suffered greatly and was put to great loss and expense by reason thereof. The question is, whether these facts, if established, would give a cause of action, or make a case proper to be submitted to the jury. The plaintiff was the hired servant of the defendant. The legal relation existing between the parties was that of master and ser- vant. Then what duty devolves upon the master, as regards the expo- SPAN v. ELY. 257 THIRD DEPARTMENT, SEPTEMBER TEBM, 1870. ure of his hired servant to an infectious disease under his employ- ment? In respect to injuries to the person of the servant while engaged in his master's business under his employment, the law is supposed to be well settled. If the servant engage with knowledge of the dangerous character of the employment, he will be deemed, in the absence of any qualifying facts, to have contracted with refer- ence thereto, and to have assumed the risks incident to the service. (Ryan v. Fowler, 24 N. Y., 410.) But the principal or master ia responsible for injuries resulting to his employees from his per- sonal negligence or misfeasance. (Keegan v. The Western R. R, Co., 8 N. Y., 175 ; Warner v. Erie Railway Co., 39 id., 468 ; Con- nolly v. Poillon, 41 Barb., 366; Affd. in Ct. App., 41 N. Y., 619, n.) So it has been held that the master is responsible, in case he exposes his servant to unreasonable risks and dangers. In Noyes v. Smith (28 Vt., 59), it is said that " the master is bound to exercise care and prudence, that those in his employment be not exposed to unreasonable risks and dangers ; and the servant has a right to understand that the master will exercise that diligence in protecting him from injury." This case and this principle have been repeatedly cited in our courts with approval, and Judge BKOWN gives the principle significance in Connolly v. Poillon, when he says that in determining the duty of the master to his servant, reference must be bad to the limited means of knowledge possessed by the latter, and to the fact that men whose business is the lowest forms of human labor are not given to thought, reflection, and foresight, and therefore some one must usually think and reflect and foresee for them. Now, had the plaintiff in this case been ignorant of the fact that the house was infected, and the defendant, knowing of it, had omitted to inform him, and he had contracted the disease while engaged there in the defendant's service, undoubtedly the defend- ant would have incurred liability. It would be manifestly impru- dent to send a servant to labor in an infected house. It would expose him to great risk and danger in violation of the plainest rule of right. A master is not privileged, knowingly, to put his servant's health or life in jeopardy, without informing him of the risk so that he may avoid it. So it has been well said, that it is the master's duty to be careful that his servant be not induced to work under the supposition and belief that he is secure from danger, HUN VOL. VIII. 83 258 SPAN u. ELY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. when in fact the master knows, or ought to know, that it is not so. In Cesar v. Karute (60 N. Y., 229) the defendant leased apartment* to the plaintiff which were infected with the small pox, of which fact the former had notice but did not notify the plaintiff, and the latter contracted the disease. The defendant was held to liability. (See, also, Jeffrey v. Bigelow, 13 Wend., 518 ; B. and A. R. R. Co. v. Shanly, 107 Mass., 568; Bai*ney v. Burnstetibinder, 64 Barb., 212 ; Thomas v. Winchester, 6 N. Y., 397; Vandenburgh v. Truax, 4 Denio, 464.) In the cases here cited, as well as in the case under consideration, the rule of liability is made to stand upon the principle of right and fair dealing between man and man, whatever may be their relation to each other. In this case the plaintiff was informed, before his employment by the defendant, that a person had sickened and died in the house of the small pox. Did knowledge of this fact change the case so as to relieve the defendant from liability ? The decision in Patter- son v. Wallace, in the House of Lords (28 Eng. Law and Eq., 48), Answers this question in the negative, or rather holds, that with such knowledge, accompanied by assurances that there was no danger to be apprehended, it became a question for the jury whether due care and caution had been exercised. In the case cited the injury complained of occurred to a miner, who was employed by the defendant to work in his coal mine. While engaged in taking out coal a stone fell from the roof of the mine and killed him. It appeared that the deceased knew of the danger- ous position of the stone and had often complained of it to the defendant's manager, who insisted that there was no danger to be apprehended from it ; he, nevertheless, promised to remove it. It was first held in this case, that the knowledge of the deceased that the stone was in a dangerous position, barred the action for the injury occasioned by its fall ; but on appeal, this decision was reversed. In considering the case on appeal the lord chancellor first laid down the rule that when a master employs a servant in work of a particularly dangerous character, he is bound to take all reasonable precautions against dangers to be incurred by his workman ; and he then proceeded to examine the question, whether knowledge by the workman of the danger which existed should, in that case, bai & right of recovery for the injury which ensued. He laid particu- SPAN v. ELY. 259 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. lar stress upon the assurances by the manager to the deceased that there was, in point of fact, no danger. The manager had told the workmen when they complained of the danger that they were "afraid of snow, when none fell;" in effect, that there was no reason to apprehend injury. The deceased remonstrated, saying, " it is dangerous." The manager replied : " Why, Robin, you might make your bed below it." So the conclusion was reached by the lord chancellor, that, in consideration of these assurances to the deceased that no danger was to be apprehended or incurred, the jury might find that there was no rashness of con- duct on the part of the deceased ; and that the question would remain for them, whether, on the whole case, the master had acted toward his servant with due care and prudence. Now, let us turn to the case in hand, and mark the strong analogy on this point between that and the one cited. Here the plaintiff knew of the fact that the house had been recently occupied by a person having the small pox. The defendant, who was a physician, applied to the plaintiff to whitewash the house. The latter said he was afraid. The defendant then told him there was no danger ; that the house had been thoroughly cleansed ; that he would guar- antee him against danger ; that if there was any danger he would say so ; or, in substance, all this, with other assurances, that he would incur no risk in doing the work. Thereupon the plaintiff accepted the employment. Now, with this evidence, according to the decision in Patterson v. Wallace (supra), it was for the jury to say, on all the facts of the case, whether the plaintiff had acted rashlj and inexcusably in entering the house under the employ- ment; and whether the defendant had acted toward the plain- tiff with due care and prudence. There were other questions, of course, for the consideration of the jury. It was a question of fact, on the proof, whether the plaintiff contracted the disease at the infected house, as there was some proof of his exposure to the dis- ease elsewhere. As the case is here presented, it should have been submitted to the jury on all the evidence, with proper remarks and instructions by the court on all the questions of fact presented by the pleadings and the evidence. The nonsuit and dismissal of the complaint were erroneous. A new trial must be granted. 260 BURROWS v. WHITAKEK. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. LEARNED, P. J. : I concur in this result. But it should be noticed, I think, that the pleadings admit that the representations made by the defendant were untrue ; and that it is proved that one of these representations, admitted to be untrue, was that the house had been thoroughly cleansed, which was a matter of fact not of opinion ; and further, that the defendant was the health officer of the place and a physi- cian ; on whose statements, therefore, the plaintiff might rely. Present LEARNED, P. J., and BOOKES, J. BOARDMAN, J., taking no part. Judgment and order reversed ; new trial granted, costs to abide event. JESSE O. BURROWS, RESPONDENT, v. STEPHEN F. WHITAKER, APPELLANT. Contract of tale when title passes Delivery acts to designate a/riidet to atcer- tain their value distinction. Defendant agreed to purchase of the plaintiff all the lumber he should deliver, prior to the spring or rafting freshet, at a place on the Delaware river to be provided by the defendant, who also agreed to furnish a man to receive and cull the same, and to pay therefor eleven dollars per thousand for all good lumber, and five dollars and fifty cents for the culled ; the amount of lumber to be counted while on the bank or estimated when in a raft In pursuance of this contract plaintiff delivered lumber at the place to a man employed by the defendant to receive and cull it; before the lumber had been counted or estimated a portion of it was carried away by a freshet Held, that the title to the lumber passed to the defendant upon its delivery at the designated place, and that he was liable for the price thereof. If the act remaining to be done is one of specification the title does not pass; if only to ascertain the total value at designated rates, the title does pass. APPEAL by the defendant from an order denying a motion for a new trial made on the judge's minutes, and also from a judgment in favor of the plaintiff, entered on the verdict of the jury. The action was brought to recover for a quantity of sawed lum- ber, alleged to have been sold and delivered by the plaintiff to the defendant. The answer was a general denial and payment. BURROWS v. WHITAKER. THIBD DEPARTMENT, SEPTEMBER TEKM, 1876. On the trial the plaintiff gave evidence tending to show a sale of the lumber and its delivery on the bank of the Delaware river, where it was agreed that it should be deposited. - While the lumber was lying on the bank of the river a portion of it was carried away by a freshet. The defendant accepted and paid for the remainder, but refused to pay for what was lost by the freshet, and this action was brought to recover therefor. The jury found a verdict for the plaintiff for $910.82. A motion was made for a new trial on the judge's minutes, which was denied. Judgment being entered on the verdict an appeal was taken therefrom, and also from the orJer denying a new trial. The question on the trial was whether, by the terms of the con- tract of sale, which was oral, the title to the lumber passed to the defendant on depositing and leaving it for the defendant on the bank of the river. It was also insisted that there was evidence tending to show its actual acceptance. The facts necessary to the consideration of the questions presented on the appeals are given in the following opinion. Chapman de Martin, for the appellant. A. C. Moses and Giles W. Hotchkiss, for the respondent. BOCKES, J. : There was no dispute as to the general facts of the case. That there was an agreement between the parties for the purchase and sale of the lumber was admitted by both, and its terms were given by them alike except, perhaps, as to the single point of delivery. The contract was made in the spring of 1872. The defend- ant agreed to pay the plaintiff eleven dollars per thousand for all the good lumber, and five dollars fifty cents for all the culled lumber, the latter should deliver at Traver's eddy, on the bank of the Dela- ware river, prior to the first rafting freshet in the spring of 1873, the defendant agreeing to have a man at the place of delivery to cull and pile it. Under this contract the plaintiff commenced to deliver the lumber at the place designated, in the early part of December, and continued such delivery until about the middle of January following or perhaps a little later ; the defendant fur- 262 BUKROWS v. WHITAKER. THIKD DEPARTMENT, SEPTEMBER TERM, 1876. nishing a man as he had agreed to do, who assisted in unloading and directed the culling and piling it. During the time of such delivery, and on the seventeenth January, there occurred an ice freshet which washed away the lumber in dispute. The case turned on the question, whether there had been such a delivery of the property washed away as to vest the title to it in the defendant. Let us now turn our attention to the proof bearing on the question of delivery. The plaintiff testified as follows: ''He said he would buy it on the bank, if I would deliver it on the bank at Traver's eddy. * * * We talked it over a few minutes and I finally told him he could have it on the bank. * * * It was agreed upon that he should furnish a man to pile it. * * * He didn't want the culls in, as it would hinder him about rafting, and he would cull it and pile it so as to have it handy to raft. * * * I think I asked him how we should get at the amount, and after talking awhile we said to each other that we would either count it or estimate it ; either count it on the bank or esti- mate it in the raft." On his cross-examination, he said, " it was to be either counted on the ground or estimated in the raft ; it was not decided which ; " and again, " it was either to be counted on the bank or estimated in the raft, when rafted." The defendant testified that the lumber " was to be counted on the bank, in the spring when we rafted ; when spring opened I was to take the lumber and have it counted or estimated when rafted in the raft." He denied that he agreed to furnish a man to receive, cull and pile the lumber as it was being drawn. Such was the substance of the evidence on this point ; and it is readily seen that it was not so entirely uncontradictory and positive as to leave the question as to the change of title a mere matter of law. Precisely what the parties agreed upon in regard to the delivery became a question of fact, to be determined on a consideration of the evidence as given by the parties, not entirely harmonious, viewed under the light of the circumstances attending the trans- action. Had the contract been in writing, in the absence of any latent ambiguity, the question would have been one of law on the instrument itself; a simple question of legal con- struction. But here the parties differed somewhat, both as to what was said at the time the bargain was entered into and BURROWS v. WHITAKER. 263 THIBD DEPARTMENT, SEPTEMBER TERM, 1876. as to their subsequent action in carrying it into effect. Such action is frequently of significance in determining the purport of a contract, where its construction is a subject of doubt. This was a case open to examination on all the evidence as a question of fact, whether the deposit of the lumber on the bank of the river constituted an absolute and perfected delivery of it, pursuant to the contract between the parties. The parties had testified, each to his own version of the contract; they were not entirely har- monious in their statements ; the defendant provided the place of deposit on the bank of the river ; he furnished a man to pile, cull and count it as it was there deposited ; the plaintiff testified that he agreed to furnish a man so to receive it ; the lumber, or part of it, was rafted without further or mutual inspection ; there were declarations of the defendant of some significance as to his inter- pretation and understanding of the contract. Under this condition of the case it was properly submitted to the jury for their deter- mination as a question of fact : (1) As to what the contract was, and (2) whether there was an absolute and perfected delivery of the lumber under the contract. It is insisted on the part of the defendant, that, accepting the statement of the plaintiff himself, and wholly rejecting all evidence conflicting with it, the lumber was to be counted on the bank of the river in the spring, or estimated in the raft when rafted; neither of which was done as regards what was carried away by the freshet, hence there was no delivery of it so as to vest the title thereto in the defendant. It is, indeed, a very familiar rule, that title to property sold does not vest in the vendee until delivery actual or constructive; and so it has become a well settled rule that title does not pass to the vendee, so long as any thing remains to be done to ascertain the identity, quantity, quality or price of the property ; that is, in case either of these acts was by the fair construction and import of the contract to precede or accompany delivery. The rule has been, perhaps, more clearly stated thus : that where, after a sale of goods, some act remains to be done by either the vendee or vendor before delivery, the property does not vest in the vendee, but continues at the risk of the vendor. The cases bearing on this subject are collected and commented on by Mr. Justice HAND, in Evans v. Harris (19 Barb., 416), with 264 BURROWS v. WHITAKER. THIUD DEPARTMENT, SEPTEMBER TERM, 1876. few, if any, omissions of those reported prior to that time (1853). And all later cases are probably in consonance with those there cited. The question here is, whether the contract was executed as to the lumber deposited on the bank and received there by the per- son designated by the defendant to receive it, so fast as it was so deposited ; or whether it remained executory until counted in the spring or estimated in the raft. The plaintiff insists that it was the agreement between the parties that the title should pass on delivering the lumber on the bank. The plaintiff likens this case to Crofoot v. Bennett (2 N. Y"., 258), where the bricks sold were not counted out, marked or separated from the residue in the kiln, yet it was held that the title passed to the vendee. Tn this case it was said that where goods are clearly identified, then, although it may be necessary to number, weigh, or measure them, in order to ascer- tain what would be the price of the whole at a rate agreed upon between the parties, the title will pass. It was here further said, that the distinction to be observed in the cases does not depend so much upon what is to be done, as upon the object which is to be effected by it. If that is specification, the property is not changed ; if it is merely to ascertain the total value at designated rates, the change of title is effected. The doctrine of this case has been repeatedly recognized and sanctioned in more recent decisions, and stands upon a sound basis. (See "Wait's Table of Cases under Orofoot v. Bennett ; see, also, Dexter v. Bevins, 42 Barb., 573 ; Tyler v. Strong, 21 id., 200; Macomber v. Parker, 13 Pick., 175 ; Riddle v. Varnum, 20 id., 280 ; Russell v. Carrington, 42 N. T., 118.) In McLComher v. Parker (wpra), it was laid down that where a quantity of goods bargained for at a certain rate is actually delivered the sale is complete, notwithstanding the goods are to be counted, weighed, or measured in order to ascertain the amount to be paid for them. Now, assuming it to be true, as the plaintiff tes- tified, that the delivery was to be made on the bank of all the lum- ber he should see fit to place there prior to the spring or rafting freshet ; that the defendant provided the place of its deposit, and agreed to have a man there to receive it, and that he was there and did receive it, culling it as it was delivered ; even if the contract was that the amount to be paid should be determined in the spring by counting or estimating, the title passed according to the deci- POPE v. HANMER. 265 THIBD DEPARTMENT, SEPTEMBER TEBM, 1876. sions above cited. The plaintiff says : " I think I asked him how we should get at the amount, and after talking awhile, we said to each other that we would either count it or estimate it ; either count it on the bank or estimate it in the raft." Now, here the property was identified by its delivery on the defendant's banking ground, and by its reception by his agent or servant. The count- ing or estimating was not necessary for identification. It was in the defendant's actual possession, and under his control, for he con- templated putting it in the raft before estimating it, if he should so elect. The price was settled ; and the counting or estimating was merely to determine the amount with a view to payment. Thus the case was directly within the decisions cited. It must be held that the title to the lumber passed to the defendant on its delivery on the bank of the river. There was no error in the admission or rejection of evidence calling for a reversal of the judgment. The order and judgment appealed from must be affirmed, with costs. LEARNED, P. J., concurred. BOAHDMAN, J., not acting. Judgment and order affirmed, with costs. JAMES POPE, RESPONDENT, v. LEWIS HANMER, APPELLANT. Adverse possession substantial indosure Cultivation and improvement Code, 85. In this action, brought to recover damages for a trespass committed upon the land of the plaintiff, the defendant claimed to hold the lot by adverse possession. It appeared upon the trial that the lot was inclosed on one side by a highway, on two sides by fences and on the remaining side by a distinct line of marked trees from corner stake to corner stake. Held, that the lot was not protected by a substantial inclosure within the meaning of subdivision 1 of section 85 of the Code. It further appeared upon the trial, that the defendant had occasionally used the lot, (a wood-lot) as a pasture, and that he had, now and then, taken wood and timber from It for shingles and staves. Held, that this did not show it to have been usually cultivated or improved, within the meaning of subdivision 2 of sectiom 86 of the Code. HUN VOL. VIII. 34 266 POPE v. HANMER. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. APPEAL by the defendant from an order denying a motion for i new trial, made on a case and exceptions. The action was trespass for unlawfully entering upon the plain- tiff's land and cutting and carrying away a quantity of wood. The defense set up was a general denial, title and possession in the defendant, and adverse possession. The case was tried by jury, and a verdict of five dollars damages was rendered against the defendant. Thereupon a case with exceptions was made and settled, and a motion thereon was made at Special Term, for a new trial, which motion was denied. An appeal was then taken to the General Term. The questions raised on the appeal appear in the opinion. C. S. Baker, for the appellant. The land was substantially inclosed and cultivated or improved. It was used for the supplying fuel (wood-lot). (Beecher v. Van Valkenburgh, 29 Barb. S. C., 319 : Craig v. Goodman, 22 N. Y. R., 170 ; 1 Hilliard on Real Property [4th rev. ed.], 66, note and cases cited ; Dominy v. Miller, 33 Barb. S. C., 386.) J. McGuire, for the respondent. Where a party has no paper title, a possession ur occupation to be adverse must be an actual enjoyment of the land for agricultural purposes, such as plowing, sowing, erection of buildings, making improvements generally. (Doolittle v. Tice, 41 Barb., 181 ; Lane v. Gould, 10 id., 254 ; Doe v. Campbell, 10 Johns.. 477* Jackson v. Wheat, 18 id., 338; Jack- son v. Warford, 7 Wend., 62 ; Corning v. Troy Iron and Nail Fac- tory, 34 Barb., 529, affirmed in 44 N. Y., 577.) The defendant's deed confining him to lands on lot three, he has no constructive possession of any land on lot four. (Jackson v. Woodruff, 1 Cow., 286, 505; Tyler on Eject., etc., 895, and cases cited.) The plaintiff had pos- session of the land, and the action could be maintained. When a party has a deed for an entire lot of land, a part of which is under actual occupation, within a substantial inclosure, the legal effect of the deed is to enlarge the occupation and to create a constructive possession of the remainder. (Jackson v. Woodruff, 1 Cow., 276 ; Jackson v. Bowen, 1 Caines, 358 ; Jackson v. Olitz, 8 Wend., 440 ; Wickham v. Freeman, 12 Johns., 183 ; Jackson v. Hazen, 2 id., 22 ; Miller v. Shaw, 7 Serg. & Rawle, 143.) POPE v. HANMER. 267 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. BOOKES, J. : The parties were owners of adjoining lands, the plaintiff on the south and the defendant on the north of the dividing line. There had been a fence for many years on the north of the plaintiff's cul- tivated land, inclosing it on that side and separating it from the uncultivated wood and timber land, which fence the plaintiff insisted was at a considerable distance south of the true line, and was, as he claimed, erected and maintained for his own convenience. The defendant, on the other hand, claimed and insisted that this fence marked the southern boundary of his lot, and the action was brought against him for entering upon and cutting wood on the strip of land situated between what the plaintiff claimed to be the true line and the fence. Much evidence was given bearing on the issue, and it may be here observed that no question is raised on this appeal, in regard to the admission or rejection of evidence. The first point urged upon our consideration is, that the court erred in refusing to direct a verdict for the defendant on the evidence. There was very manifestly no error in such ruling. Without reca- pitulating the evidence and its bearings, it is sufficient to say that a case was made for the jury on the proof. There was a question of fact certainly on the evidence as to the location of the true line, and also on the question of practical location, supposing that the fence did not mark the true line. These questions were properly given over to the jury, and, on this appeal, must be deemed settled by the verdict. The jury found, as they had a right to find on the evidence submitted, that the true line between the premises of the respective parties was north of the fence, and would include and give to the plaintiff the lands where the alleged trespasses were com- mitted ; and further, that there had never been any practical location of the line between the parties, by the owners on the north and south of it, which barred the plaintiff's right to insist on the true line as the northern boundary of his land. Thus the verdict determines the rights of the parties, unless obtained or rendered under some errone- ous instruction by the court to the jury. This brings us to the con- sideration of the only important question presented by this appeal. On submitting the case to the jury, the learned judge held and charged that there was no question of adverse possession in the case. He said : There is no claim depending upon adverse posses- 268 POPE v. HANMER. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. sion, for the reason that the property in dispute is wood-land, and was incapable of actual possession or use ; consequently the prin- ciple of adverse possession as establishing title to land does not come into the controversy. This ruling must be considered in view of the provisions of sections 83, 84 and 85 of the Code of Procedure. Section 83 declares what shall constitute adverse pos- session " under written instrument or judgment." This section need not be here considered, inasmuch as the defendant made no claim to any part of lot number four under either. His train of title did not purport to convey any part of lot number four. Sec- tion 84 provides that when the adverse holding is under claim of title, not founded upon a written instrument, * * * the premises actually occupied, and no other, shall be deemed to have been held adversely, and section 85 declares what shall be deemed an actual occupation, to wit : (1) Where the land has been pro- tected by a substantial iuclosure ; and (2), where it has been usually cultivated and improved. As above suggested, the facts proved did not bring the case within the purview of section 83. The defendant showed no paper title, or claim founded on a written instrument, to any part of lot four, on which the locus in quo was situated. If his title in fact embraced the locus in quo as part of lot three, there was no question of adverse possession whatever, for it was not disputed, indeed was conceded, that he owned to the eouth line of lot three, wherever that might be in fact, or as estab- lished by practical location, and the location of the line to which it was conceded the defendant had title was left to the decision of the jury on the evidence. Thus it is seen that the defendant had no title, nor did he make claim of title upon a written instrument, to any land south of the line, wheresoever that line should be found to be, either in point of fact or by practical location. Consequently his case on the proof was not brought within the purview of sec- tion 83. If he had any case for an application of the law of adverse possession, it was because, having title to all or part of lot three, possession had been extended in good faith over part of lot four, on the mistaken supposition that the train of title in fact embraced the land and justified such possession. (Hollas v. Bell, 53 Barb., 247.) But a claim of adverse possession under such a state of facts is controlled by sections 84 and 85 of the Code POPE v. HANMER. 269 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. of Procedure. It would be the case of a party claiming title not founded upon a written instrument ; in which case the premises actually occupied, and no other, shall be deemed to have been held adversely. (Code, 84.) Now, for the purpose of considering the question under discussion, the locus in quo must be regarded as south of the line, or not within the description contained in the defendant's line of title. Then, was the possession by the defend- ant and by his predecessors, of the locus in quo, an actual posses- sion within the requirements of the law ? This is to be determined by section 85 which provides that, " for the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only : (1) Where it has been protected by a substantial inclosure ; (2) where it has been usually cultivated and improved." (Code, 85.) It cannot be maintained that the locus in quo in this case was pro- tected by a substantial inclosure. The premises claimed by the defendant were not so inclosed. Accept the statement of the defend- ant's counsel, as given in his points, that it was " inclosed on two sides by fences, a highway on another and a distinct line of marked trees from corner stake to stake on the other," and the lot could not be deemed protected by a substantial iucloM;;e. (Doolittle v. Tice, 4:1 Barb., 182.) Corner stakes do not, nor does a line of marked trees, constitute a substantial inclosure. Then, was the defendant's possession and that of his predecessors such as was required by subdivision 2 of section 85 with a view to the estab- lishment of title by adverse possession ? Had the locus in quo or the defendant's lot, of which it was a part as claimed, been usually cultivated or improved ? The lot was a wood-lot, and the utmost that was proved as to possession even (to say nothing as to cultiva- tion and improvement) was an occasional pasturing upon it, and now and then getting wood and timber for shingles and staves, and this only to a very inconsiderable and limited extent. To adopt the language of the learned judge in Doolittle v. Tice (supra), there is no evidence that the defendant adopted any of the means usually employed to improve the land. He never plowed, sowed or tilled 't, and it was then added, that this statute had in view the ordinary cultivation and improvement of lands, in the manner in which they 270 POPE w. HANMER THIRD DEPARTMENT, SEPTEMBER TERM, 1876. are usually occupied, used and enjoyed by farmers for agricultural purposes, such as plowing, sowing, manuring and the like. In this case there can be no pretense that the defendant had thus cultivated or improved the lot. (See, also, Lane v. Gould, 10 Barb., 254.) In the last case cited the rule was laid down, that to make out an adverse possession of lands so as to vest the title, where there is no deed or other written instrument, there must be a real substantial inclosure an actual occupancy &pedis possessio, definite, posi- tive and notorious, or they must have been usually cultivated or improved. As regards an actual possession a pedis possessio with a view to establish title by adverse holding, in a case like the one in hand, Jackson v. Woodruff (1 Cow., 286) is in point. (See, also, Crary v. Goodman, 22 N. Y., 170-173, 174, 175.) These cases declare the rule to be that where a grantee, in taking posses- sion under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing them to be his, such occupation will be deemed adverse within the meaning of the statute of limitations, but only to the extent of his actual occupancy by cultivation and improvement. So where a party rests upon his possession of land, outside the description in his deed, the possession, to be effectual as an adverse possession, must be an actual occupation by improvement and cultivation. If the above conclusions be sound, and they seem to stand on authority, the learned judge was right in his instructions to the jury, that the question of adverse possession was not in the case. There was no evidence submitted on which the defendant could predicate a title to the locus in quo, by adverse possession. So, also, these conclu- sions make the case one where the possession must in law be deemed to accompany the legal title, hence trespass might be maintained by the party holding such title. It seems, therefore, that the case was properly disposed of at the Circuit, and the ordei appealed from should be affirmed, with costs. LEARNED, P. J., concurred. BOARDMAN, J., not acting. Order affirmed, with costs. WILLIAMS v. PEABODY. 271 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. HIRAM WILLIAMS, RESPONDENT, v. FANNY PEABODY APPELLANT. Vested remainder action to restrain waste who can maintain Residuary lep atee when he may compel a discovery of personalty held by life beneficiary. The plaintiff was the owner of an estate in certain laud for the life of B. , to com mence upon the termination of an estate of the defendant therein for the term of her natural life. Held, that he had a vested remainder therein, and could maintain an action to restrain the defendant from the commission of waste. Defendant was entitled, under the will of her deceased husband, to use certain personal property, in her due discretion, for any purpose and in any reasonable manner, and in such use to consume and exhaust the same, if necessary for her own care and support, and the plaintiff was entitled to receive whatever might remain after her death. Held, that he was entitled to maintain an action to compel the defendant to render an account as to the items of personal property received by her, no inventory thereof having ever been made. APPEAL by the defendant from a judgment in favor of the plain- tiff, directed by a justice of this court, before whom the action was tried without a jury. The action was an action of waste, and for an accounting in regard to personal property. The plaintiff demanded judgment for damages ; also for forfeiture of the defend- ant's estate, and for protection of his rights in the personal prop- erty. By the judgment, the plaintiff was awarded an injunction to stay waste, and an accounting was ordered as to the personal property, with costs of the action against the defendant. From this judgment the defendant appeals to the General Terra. A. D. Enapp, for the appellant. W. H. Johnson, for the respondent. BOCKES, J. : The property, both real and personal, as to which relief is sought in this action, came to the defendant under the will of her deceased husband, John Brainard. By that instrument the defendant took an estate for her own life in the lands and premises, with the right also to use the personal property, in her due discretion, for any pur- pose and in any reasonable manner, and in such use to consume and exhaust the same if necessary for her own support. The remainder of both the real and personal property was, by such will, given and 272 WILLIAMS v. PEABODY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. devised to one John Daj' Wai worth. The latter died intestate leaving no widow nor descendant, but leaving a father, Gilbert Walworth, him surviving. John D. Walworth, the legatee and devisee, was the nephew of the testator on his mother's side, consequently, under the circumstances of survivorship in his case (which it is here unneces- sary to detail), his father, Gilbert Walworth, took, under the statute of descent, a life interest or life estate for his own life, in the real property, subject to the defendant's life estate therein (Morris v. Ward, 36 N. Y., 587), and he inherited from his son an absolute interest in the personal property, subject to the defendant's right to its use and enjoyment during her life, as above stated. These rights of property, so held by Gilbert Walworth, as heir and next of kin of his son John D. Walworth, were acquired by the plaintiff in this action and were held by him for a considerable time prior to, and until the commencement of the suit. It is not deemed necessary to state the facts of the case more in detail, as there cannot be, and indeed is not, any question raised in regard to them; certainly not as affecting the title of the respec- tive parties. We may assume, therefore, that the plaintiff's rights of property, both as regards the real and personal estate, are the same as were those of Gilbert Walworth ; and that they are correctly herein above given. It is seen, therefore, that the estate of the plaintiff in the real property was a remainder for the life of Gilbert Walworth to commence in possession on the decease of the defend- ant. True, whether it would ever take effect in possession was nncertain ; being made to depend on the fact whether Gilbert Wal- worth should survive the defendant. Nevertheless, it was a vested remainder. Kent says, " a vested remainder is a fixed interest to take effect in possession after a particular estate is spent. If it be uncertain whether the use or estate limited in future shall ever vest, that use or estate is said to be in contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will, nevertheless, be a vested remainder if the interest be fixed." (4 Kent, 202.) And, again, he says, " it is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder" (id., 203); and again, "it is WILLIAMS v. PEABODY. 273 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and contingent interest." (Id., 206.) Now, here the uncer- tainty was as to the enjoyment in future, not as to the right of that enjoyment. The plaintiffs right to enjoy the estate, on the deter- mination of the intermediate one, was fixed and certain. Conse- quently his estate was a vested remainder for the life of Gilbert Wai- worth, to commence in possession on the decease of the defendant. Against injury to such interest by the defendant, who held the inter- mediate estate, the plaintiff might claim and should have the pro- tec*ion of this court. While he might not have a right of recovery at law for damages, yet he could have a remedy in equity by injunction to stay waste. Even when there is only a contingent estate, a court of equity will not permit waste to be done to the injury of such estate. So an injunction will be granted when the aggrieved party has equitable rights only. (2 Story's Eq., 913, 914, 919 ; Willard's Eq. [Potter's ed.], 139 ; Woodruff v. Cook, 47 Barb., 304.) In this case no right of recovery for damages waa shown, and none were allowed. So the claim for judgment of forfeiture and eviction was not sustained, as such judgment could only be given when the injury to the estate in reversion or remain- der should be adjudged to be equal to the value of the tenant's estate or unexpired term, or to have been done in malice. (Code, 452.) This was not here so adjudged. But the plaintiff had rights which the court, in the exercise of its equitable powers, could protect. The defendant was shown to have suffered per- missive waste, as the learned judge who tried the cause has found, in " utter defiance of, and disregard for, the plaintiff's rights." He also finds that the plaintiff's interest in the real estate is exposed to loss and injury, and is liable to be seriously affected by the improper manner in which the defendant, just previous to the com- mencement of the action, permitted the same to be wasted and injured. These findings are not without sufficient support under the proof. The injunction was, therefore, properly awarded. As regards the personal property, no other judgment than for an accounting as to items was directed. This was proper, inas- much as the plaintiff had a right to know of what it consisted. No inventory of the property had been made, and the defendant HUN VOL. VIII. 35 274 WILLIAMS v. PEABOUY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. used it for her own purposes, denying all right thereto in any othei party. The action is not for an accounting by the defendant as executrix, but to compel a disclosure of the nature and kind of property received by her, with a view to its due preservation and ultimate application according to the terms of the will. This the plaintiff may demand, and to such relief he is entitled, hold- ing as he does the position and rights of residuary legatee. It is but right and equitable that the defendant, who has received the property, should discover and set it forth, and refusing so to do, the court of equity may compel it. True, the defendant may use the property for her own proper and neces- sary purposes, and may, if required for her necessary support* wholly consume and exhaust it ; but the plaintiff is entitled to have whatever shall remain of it on her decease. The judgment here ordered, to the effect that the defendant should render an account of the items of the property, was therefore just and proper, with a riew to protect the plaintiff in his rights relating thereto. The granting or withholding of costs to the respective parties rested in the discretion of the court, as the cause was tried and is now argued before us as an equity case. The plaintiff, it seems, failed on the most important claims, charges and demands put forward in the complaint, and it may be added also that the defendant put herself on untenable grounds of defense in several important particulars. Perhaps a very just dis- position of this question would have been the withholding of costs from each party as against the other. But the learned judge in the exercise of his discretion adjudged otherwise, and doubtless based his conclusion on what he deemed the wrongful and unjustifiable course pursued by the defendant in her use of the property. He has characterized her conduct with reference to the property as willful and in utter disregard of the plaintiff 's rights. It cannot be maintained, I think, nnder the proof and findings of the learned judge, that his conclusion was erroneous as an improper exercise of, or abuse of discretion. The judgment appealed from must be affirmed, with sosts. LEARNED. P. J., and BOABDMAN, J., concurred. Judgment affirmed, with costs. PEOPLE EX KEL. VAN TASSEL v. SUPERVISORS. 275 THIRD DEPARTMENT, SEPTEMBER TEBM, 1876. THE PEOPLE EX BEL. WM. H. VAN TASSEL, RESPONDENT. v. THE BOARD OF SUPERVISORS OF THE COUNTY OF COLUMBIA, APPELLANT. Sheriffs GJuipter 495 of 1847 fees of officers in criminal proceedings under by whom audited Common council of Hudson power of to audit claims 97, chapter 468 of 1872. The term " criminal proceedings," as useu in chapter 495 of 1847, providing foi the payment, by the several towns and cities, of all fees and accounts of magis trates and other officers for criminal proceedings, instituted for certain offenses committed therein, embraces all necessary and legal actions by magistrates and ministerial officers having in view the punishment of public offenders and violators of public rights and duties, as distinguished from civil injuries. Where the sheriff of the county of Columbia rendered services in receiving, dis- charging and boarding prisoners committed to jail by the police justice of the city of Hudson for offenses commuted therein, none of which were felonies, held, that even if some of the cases in which they were rendered did not fall within the strict definition of " criminal proceedings," yet as tht-y were all ren- dered in other than civil proceedings, and in the line of his official duties he was entitled to compensation therefor. A just allowance hi such cases would be the amount fixed by statute for similar services in other proceedings. Under section 97 of chapter 468 of 1872, providing that the common council of the city of Hudson shall be " the board of auditors to examine the accounts of officers of the city, with the same powers and shall proceed in the same way as is prescribed by law for the board of town auditors in towns," the com- mon council is not restricted to the examination and audit of the accounts of "officers " of the city, but it is vested with all the powers possessed by the board of town auditors of towns, and it is its duty to audit bills presented by the sheriff of Columbia county for services chargeable under the act of 1847, upon the said city. APPEAL from an order of the Special Term, granting a writ of peremptory mandamus requiring the board of supervisors of Colum- bia county to allow a claim presented by the relator, as sheriff of said county. His claim of $2,548.75 was made up of items for fees in receiving and discharging, and for board of prisoners committed to jail by the police justice of the city of Hudson in cases not felo- nies, but principally in cases of intoxication in public places ; of vagrancy and of violations of ordinances of the common council of the city. All the charges related to proceedings in which the offenses punished or investigated occurred in the city of Hudson. 27(> PEOPLE EX KEL. VAN TASSEL v. SUPERVISORS. Th i HI> DEPARTMENT, SEPTEMBER TERM, 1876. The board of supervisors refused to audit or assess the claim, or any part of it, on the ground that the items thereof were not county charges, and had not been audited and allowed by the " board of auditors " of the city of Hudson ; and that it was made unlawful for their body " to audit or allow any account chargeable to said city." The Special Term held their refusal to audit and to assess the claim erroneous and improper, and granted the writ of manda- mus as demanded. From the order granting such writ an appeal was taken to the General Term. JR. E. Andrews, for the appellant. C. P. Collier, for the respondents. BOCKES. J. : We do not understand that the claim of the relator includes any illegal or improper charge. The items of which it is composed are such as the law authorizes, and the bill was duly verified. The question is, by what public body should it be audited an*d allowed, and how may payment be enforced ? Are the items subjects of town or county charges ? In so far as the claim of the relator is made up of legal fees and just matters of account "for criminal proceedings," the case would seem to be covered, to a very consid- erable extent, if not entirely, by the act of 1845, amended in 1847. That act was enacted, in part, to compel the several towns and cities to pay the expenses incurred in cases where the offenses were committed therein respectively, and is as follows : "All fees and accounts of magistrates and other officers, for criminal proceed- ings * * * shall be paid by the several towns or cities wherein the offense shall have been committed, and all accounts rendered for such proceedings shall state where such offense was committed, and the board of supervisors shall assess such fees and accounts upon the several towns or cities designated by such accounts." The exceptions to this general expression, contained in this act, need not be here noticed, inasmuch as none of the items of charge in the relator's bill come within them. Now, it will be seen, on examination of the relator's account, that the charges are princi- pally for fees and accounts incurred in criminal proceedings within PEOPLE EX EEL. VAN TASSEL v. SUPERVISORa 277 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. the plain intent of that statute. The language employed should be accepted in its more liberal and extended signification, with a view to carry out the manifest purpose which the legislature had in view, to wit: to charge upon towns and cities respectively the expenses incurred therein, in proceedings to enforce laws relating to criminal or quasi criminal matters. So, " criminal proceedings " were evidently here intended to embrace all necessary and legal actions by magistrates and ministerial officers, having in view the punishment of public offenders and violators of public rights and duties as distinguished from civil injuries. In the popular mind each persons are criminals, and proceedings against them on behalf of the people with a view to their punishment are deemed " crimi- nal proceedings." Perhaps some few of the items of charge in the relator's bill may not fall strictly within the letter of the law, giving the terms " crime" and "criminal" their strictest legal definition, but all of them were incurred in other than civil proceedings, and were proper subjects of compensation, as they were necessarily incurred by the relator in the line of his official duties. We fuily agree with the learned judge in his remarks at Special Term, that there is no justice in saying that the relator should not be paid for aervices which, as a public officer, he was bound to perform, and that under the general power given to auditors, a board of audit might allow a reasonable compensation for such services, and that a sound discretion might indicate as a just allowance in such cases, what was fixed by statute for similar services in other instances. These remarks have application to but few of the items, for most of them pertain unmistakably to criminal pro- ceedings, and all are believed to fall within the provision of the act above cited. So it would seem that the items of charge in the relator's bill were proper subjects of audit under the act of 1845, amended in 1847 ; and if so, then according to that act the bill was legally assessable upon the city of Hudson. The act declares that the fees and accounts, as therein specified, shall be paid by, and assessed upon the several towns or cities wherein the offense shall have been committed. But the bill for such fees and accounts was first to be audited and allowed ; and the question now arises, on whom did this duty devolve? If sound in the conclusion above reached, the relator's claim was against the city of Hud- 278 PEOPLE KX HKL. VAN TASSEL v. SUPERVISORS. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. son. When audited it would be a charge upon that city, which by its charter was to be regarded and treated as one of the towns of Columbia county. Now, on what officers or public body did the law impose this duty, that is, the duty of audit- ing bills against the city, regarded for this purpose as one ot the towns of Columbia county ? The general statutes of the State provide for a board of town auditors " for the purpose of auditing and allowing the accounts of all charges and claim* payable by their respective towns." (1 R. S. [6th ed.], 845, 65.) The board is required to meet annually for the purpose of audit- ing and allowing such accounts (Id., 66), and to certify dupli- cates of the audited bills, one to be delivered to the supervisor of the town, to be by him laid before the board of supervisors of his county at their annual meeting (Id., 67) ; and that board is required to cause the sum so audited, allowed and certified " to be levied and raised upon said town " (Id., 68), and the supervisors have no discretion but to direct the amount to be so levied and raised. (The People v. Supervisors of Queens, 1 Hill, 195-199.) By the city charter ( 97), the common council of the city of Hudson is made the board of auditors " to examine the accounts of officers of the city, with the same powers, and shall proceed in the same way, as is prescribed by law for the board of town auditors in towns ;" and further it is provided that " it shall not be lawful for the board of supervisors of the county of Columbia to audit or allow any account chargeable to said city." Here then was created a board of audit for the city, with the same powers, and it was to proceed in the same way, as prescribed by law for the board of town auditors in towns. Thus this board superseded and took the place of a town board as to all accounts against the city, and hence it devolved on it to audit the relator's account, which, as we have seen, constituted a claim against the city. This would follow from the provision of the charter, which vested the common conned, as a board of audit, with the same powers and duties devolvin_, >y law upon the board of town auditors, to wit, the auditing and allowing " the accounts of all charges and claims payable by their respective towns." It is suggested that section 97 of the charter above alluded to confers the right of audit upon the common council, only as to PEOPLE EX BEL. VAN TASSEL v. SUPERVISORS. 279 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. " the accounts of officers of the city" and that the sheriff is not such officer. But waiving what might perhaps be urged, that in giving fair and just effect to the intent of the legislature, the sheriff, as regards these matters of town (or city) charges, should be deemed to be an officer of the city, it is manifest that the city board of auditors were vested with the full powers of town auditors in their respective towns. This board was to examine the accounts of officers of the city, some of whom would be other than those of towns, with the same powers, etc., prescribed by law for town auditors: that is, that the common council, as a board of auditors, should have the power to examine the accounts of officers of the city, and should exercise the same powers "prescribed by law for the board of town, auditors in towns" This construction and interpretation of the law seems reasonable, in view of its manifest purpose and of the several sections relating to the subject. The claim should be audited and allowed before the amount should be levied and assessed. The right to audit or allow it was taken from the board of supervisors by explicit enactment. There was no other body than the city board of auditors having authority to examine and allow it, and it is believed that such board has the requisite authority under the city charter, which, by fair intend- ment, if not in express terms, vests the common council, as a board of auditors, with the same powers prescribed by law for the board of town auditors in towns. If so, then it devolves upon such board to audit and allow " the accounts of all charges and claims pay- able" by the city. (Sec. 65, supra.) It is suggested that such construction will necessitate the making out of bills by the sheriff, against the county and the various towns as well. But there is neither difficulty or hardship in this, inasmuch as that officer has the data at hand to answer this requirement. If the conclusions above reached be sound, the order of the Special Term granting the writ of mandamus against the board of supervisors was improperly granted. The relator's claim had not been audited and certified to that body as required by law. That body had no right or authority to audit or allow the claim ; nor had it right or authority to levy and raise the amount, until it wa legally audited and allowed. The order appealed from must be reversed, and the motion for 280 LILLIS v. O'CONNER. THIBO DEPARTMENT, SKPTEMBBR TERM, 1876. the writ denied; bat the questions considered being of a public character, new and somewhat intricate, there should be no costs allowed to either party. The order appealed from reversed, and the motion for a manda- mus denied, without costs. LEARNED, P. J ., and BOARDMAN, J., concurred. Order reversed and motion for mandamus denied. PATRICK LILLIS, RESPONDENT, v. CORNELIUS O'CONNER, APPELLANT. Action for assault and battery Code, 304 costs when title to real property involved. In this action for an assault and battery, the defense was : (1) general denial, (2) son assault demesne, (3) justification in defense of defendant's real property. The plaintiff recovered a verdict of six cents, and having obtained a certificate from the county judge that the title to real property was put in issue by the pleadings and came in question upon the trial, he taxed full costs. Held, that this was proper, and that a motion to strike from the judgment all costs in excess of six cents was properly denied. Dinehart v. Wells (2 Barb., 432) followed. Such certificate is conclusive upon the taxing officer, to show that the title to land came in question upon the trial. APPEAL from an order of the County Court of Cortland county, denying a motion to strike from the record the plaintiff's costs, except six cents, the amount of the verdict. The action was assault and battery, brought in the County Court of Cortland county. The defense interposed by the answer was : (1) general denial; (2) son assault demesne; (3) justification in defense of defendant's possession of his real property. On the trial the plaintiff had a verdict of six cents. The plaintiff obtained a certificate, signed by the county judge, that the title to real prop- erty was raised and put in issue by the pleadings, and came in question on the trial, and thereupon taxed full costs and entered judgment therefor in his favor. The defendant then moved, on an LILLIS . O'CONNER. 281 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. order to show cause, for a readjustment of the costs, and that the same be stricken from the judgment except for the sum of six cents. The order to show cause was discharged, and the motion for a readjustment of the costs was denied. Thereupon the defend- ant appealed to this court. Waters & Rnox, for the appellant. Shankland <& ShariJdcmd, for the respondent. BOCKES, J. : The decision in Dinehart v. Wells (2 Barb., 432) seems entirely conclusive of the question presented on this appeal. According to that decision the provision of the Code which declares that in an action for assault and battery, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, does not nullify or affect the prior provision of the same section (304), which provides that costs shall be allowed of course to the plain- tiff when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial. Trne, the language of the Code is not precisely the same as that of the statutes under consideration in Dinehart v. Wells, but the intent and meaning were the same. The dif- ference in the phraseology is but formal, and admits of no construction dissimilar in the one case from the other. That decision, being a General Term decision, should be adhered to until overruled in the appellate court. It is suggested that there is an important dissimilarity between the case cited and the one in hand, as regards the pleadings. In the case cited the action, like that here before us, was for assault and battery. The answer was the same in both cases, to wit : (1) general denial ; (2) son assault demesne; (3) moliter manus imposuit in defense of defendant's possession. In the case cited there was a reply to the third defense, alleging the locus in quo to be a public highway, and that the plaintiff was lawfully there when the injury complained of was inflicted. To this the defendant rejoined, denying that the locus in quo was a highway. Thus an issue was raised upon the third defense, and the court held that on such issne the title to land HUN VOL. VIII. 38 282 LILLIS v. O'CONNER. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. came in question on the pleadings. This line of pleading was admissible when the record in that case was made up by the parties, but now, under the Code, no reply to the defendant's answer was admissible (Code, 153), and the third defense was to be deemed controverted by the adverse party as upon denial or avoidance. (Sec. 168.) The two cases are therefore precisely alike as regards the pleading. Thus, in the case in hand, according to the decision in Dinehart v. Wells, and in legal logic, a claim of title to real property was raised on the pleadings. The defendant tendered the issue by his answer; a reply was inadmissible; but the new matter interposed as a defense was by the Code to be deemed con- troverted, "as upon a direct denial or avoidance." (Sec. 168.) It seems also that the title to real property came in question on the trial. The judge so certified ; and the papers before us show that evidence was given bearing on the question of title ; and the judge charged the jury on the subject. A point is made that the certifi- cate is by the judge and not by the court, but it does not appear, as it should to make this objection available, that it was raised before the taxing officer ; and besides, for aught that appears, the certificate was made by the court. The county judge is the court when in session, and that court is always open for the transaction of any business, for which no notice is required to be given to the opposite party. (Sec. 31.) It should be added here, perhaps, that the certificate was conclusive upon the taxing officer, that the title to land came in question on the trial. (Mumford v. Withey, 1 Wend., 279 ; Barney v. Keith, 6 Wend., 555 ; Burhans v. Tibbits, 7 How., 75, per WRIGHT, J. ; Niles v. Lindsley, 1 Duer, 610 ; Utter v. Gifford, 25 How., 297, per HOGEBOOM, J.) If improperly granted the certificate may be set aside on motion for that purpose. (Barney v. Keith, (tn/pra.) The order appealed from must be affirmed, with ten dollars costs and disbursements. LEAENED, P. J., and BOARDMAN, J., concurred. Order affirmed, with ten dollars costs and disbursement*. RECORD v. MESSENGER. 283 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. RUDOLPH US RECORD, AS OVEBBEER OF THE POOB OF THE TOWN OF SMYRNA, RESPONDENT, v. HANSON K. MESSENGER, APPELLANT. Chapter 820 of 1873 Prosecution for violation of excise law ly third person dts- contmuance of action by overseer of the poor costs. Where an action is brought to recover a penalty for a violation of the excise law, under chapter 820 of 1873, authorizing any person to prosecute there- for in the name of the overseer of the poor, in case the proper persons refuse for ten days to bring such action, the overseer of the poor, in whose name the action is Drought, has no power to consent to its discontinuauce without the consent of the persons by whom it was commenced. e, whether the persons instituting the action would be liable for the costs. APPEAL from an order denying a motion to discontinue this action, in pursuance of a stipulation made by the plaintiff. D. L. Aikyns, for the appellant. The person prosecuting in the name of the overseer of the poor has no interest in the action. He receives no part of the penalty or costs. (Laws 1857, chap. 628, 22 ; as amended, Laws 1873, chap. 820.) A third person prosecut- ing in the name of the overseer, does so as his agent. The overseer is still plaintiff, and is responsible for costs. He can release or dis- charge a judgment recovered in his name by such third person without payment. The power to discharge the judgment must necessarily include the power in the same person to discharge the action by which judgment might be obtained. (Smith v. Wright, 13 Barb., 414 ; Hears v. Boston, etc., 5 Gray [Mass.], 371 ; Regina v. Allen, 1 Ellis, B. & S., 850 ; Wilkinson v. Lvndo, 7 Mee. & W., 87 ; Gibson v. Winter, 5 B. & Ad., 96 ; Barlow v. Pease, 5 Hun, 564.) D. D. Niles, for the respondent. Per Cwiam: This is an appeal from an order denying the defendant's motion to discontinue the action. The motion was made when the case was moved for trial at the Circuit, on the ground that it had been discontinued by stipulation of the plaintiff. 284 RECORD t>. MESSENGER. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. The action was brought to recover three penalties alleged to have been incurred by the defendant for selling strong and spirituous liquors in violation of the excise law. It was brought originally in the name of Mr. Chapman as overseer of the poor, and the present plaintiff was substituted in the place of the former as his successor in office. Thereafter the plaintiff in person gave the defendant a stipulation c discontinuing the action without costs to either party. Notwithstanding this stipulation, the attorney of record for the plaintiff placed the case on the Circuit calendar, and, when it was reached, moved its trial. Thereupon the defendant applied to the court, on the stipulation, for an order of discontinuance. The motion was denied, and an order was entered to that effect. This appeal is from such order. It was admitted, as appears from the recitals in the order, that the overseer of the poor neglected and refused to prosecute the defendant for the penalties, notwithstand- ing duty called upon him to do so, according to the provisions of the act of 1873 ; and that James P. Knowles and Mott C. Dixon, the persons who made the complaint and request, thereupon com- menced the action in the name of the overseer, under the provision of the law providing that in case the party whose duty it was to prosecute for the penalties, should, for a period of ten days, neglect or refuse so to do, anj other person might prosecute therefor in the name of the overseer ; and it was insisted, therefore, that the action was their action and could not be discontinued by the over- seer, who was merely nominal plaintiff, without their consent. The court, it seems, maintained this view ; and, as we think, correctly. The right to prosecute the action was given, by the express lan- guage of the law, to others than the overseer, in case of his neglect and refusal so to do for ten days after request and due presentation of proof that the party had incurred the penalty imposed by the act. The right to prosecute the action was more than a mere bar- ren right to commence it to be immediately discontinued by another, without consent of the party authorized to prosecute. The right to prosecute was a right to maintain the action a right to proceed with it to trial and judgment. Otherwise the right to prosecute waa impotent and valueless. The manifest object of the provision waa to confer the privilege of enforcing the law on other parties, when the officer in whose name the action should be brought RECORD v. MESSENGER. 285 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. neglected and refused to perform his duty. This object would be completely frustrated if the officer, in such case, may stay or dis- continue the proceedings at pleasure. If he may do this, there ia no right to prosecute against his will, yet this right was plainly intended to be conferred, and in the language of the law was con- ferred. It is only under this construction that the act and its manifest intent, can be made effective. It seems, therefore, that as regards the right to prosecute the action, it should be deemed the action of Knowles and Dixon. They had acquired the right to prosecute it in the name of the overseer. We are not here called upon to decide, whether they would be liable to the defendant for his costs in case of their failure to maintain the action. Doubt- less, costs would, by the record in that case, go against the officer as such, and it may be a question perhaps, whether, inasmuch as the law provides for the prosecution of this action by persons other than the overseers, in the name of the latter, the same rule would not apply as in the case of an action prosecuted by the officer himself. In case of a prosecution by the officer on his own voli- tion he may doubtless control it, and may even discharge the judgment when obtained. Still the right to discharge a judgment in that case without payment and in fraud of the rights of the people may well be doubted. But this question is not before us on this appeal. Here the right of the attorney further to prose- cute the action is challenged, on the ground that he is without authority so to do from the plaintiff who has assumed to dismiss the case. He answers that the action is not the action of the plaintiff on the record, and that it rests with another, to whom the law has committed its prosecution. This seems a perfect answer, as it fully meets the case made by the defendant as the foundation of his motion, and this view seems to have support in Barlvw et al., overseer, v. Pease (12 N. Y. S. C. R. [5 Hun], 564). The order appealed from should be affirmed, with ten dollars ooBts and disbursements. Present LEARNED, P. J., BOCKES and BOARDMAN, JJ. Order affirmed, with ten dollars costs and printing. 286 PECK v. N. Y. C. & H. R. R. R. CO. THIRD DEPARTMENT, SEPTEMBER TERM, 1878. JOHN M. PECK, RESPONDENT, v. THE NEW YORK CEN- TRAL AND HUDSON RIVER RAILROAD COMPANY, APPELLANT. WmpLoyme nt of brakeman scope of Excessive damages verdict of jury when not set aside. A brakeman, put in charge of railway cars with a view to securing the proper and orderly seating of passengers, forcibly ejected the plaintiff, who disobeyed his direction. Held, that in so doing the brakeman must be deemed to have acted within the scope of his employment, and that the company was liable in case he used excessive and unnecesssary force. Upon the former trial plaintiff recovered a verdict for $5,000, which was set aside by the General Term, on the ground that the damages awarded were excessive. Upon the second trial a verdict was recovered of $4,000. Held, that this second verdict, rendered upon substantially the same facts as were pre- sented to the first jury, must be accepted as final and conclusive.* MOTION for a uew trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, and appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages alleged to have been sustained by the plaintiff, in consequence of his having been forci- bly removed from one of defendant's cars. Upon the first trial the plaintiff had a verdict for $5,000. Upon appeal to the Gen- eral Term, the verdict was set aside, on the ground that the dam- ages awarded were excessive, the case being reported in UN. Y. 8. C. R. (4 Hun), 236. Upon the second trial the jury ren- dered a verdict in his favor for $4,000. A motion to set aside this verdict having been denied, this appeal was taken. Samuel Hand, Matthew Hale and Frank Loomis, for the appellant. Amasa J. Parker, for the respondent. BOCKES, J. : The case is the same now as when it was before the court on the former appeal, as regards the question of defendant's liability for * See Lunt v. L. A 2f. W. Railway Co. L. R. (12 B.), 281. PECK v. N. T. C. & H. R. R. R. CO. 287 THIKD DEPAHTMENT, SEPTEMBER TEBM, 1876. the act of the brakeman, Cochran. (11 K Y. S. C. [4 Hun], 236.) The brakeman was stationed at the car to direct passengers who might attempt or desire to enter. The plaintiff disobeyed his direction, whereupon the former forcibly ejected him. There was no evidence that the brakeman had been especially instructed to remove any one from the cars by force, but he was placed in charge to direct passengers with a view to their orderly and proper arrange- ment therein. Under such a state of facts it was held that the brakeman must be deemed to have been acting within the scope of his employment, and that the company was liable in case he used excessive and unnecessary force in removing the plaintiff from the cars. There has been some loose writing on the question as to the liability of the master for the wrongful act of his servant, but the cases seem to hold quite uniformly that the master is liable for the wrongful act of his servant, if done in his service and within the scope of his employment, and this, although in doing the act the servant depart from the instructions of the master. (Biggins v. Watervliet Turnpike and R. R. Co., 46 N. Y., 23.) In this case. ANDREWS, J., says : " If he (the master) employs incompetent or untrustworthy agents it is his fault, and whether the injury to third persons is caused by the negligence or positive misfeasance of the agent, the maxim respondeat superior applies, provided only, that the agent -was acting at the time for the principal, and within the scope of the business intrusted to him." In Cosgrove v. Ogden (49 N. Y., 255-257) Judge GROVER says : " The test of the master'? responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the ser- vant was employed by the master to do." It has also been said in some cases, that when the principal puts the agent in place of him- elf, he is liable for the wrongful acts committed by the agent in the course of the employment, or the carrying out of the business with which he is intrusted. So in the recent case of Rounds v. The Del., Lac. and W. R. R. Co., in the Court of Appeals (2 N. Y. W. Digest, 260), it was held that when authority is con ferred on a servant by a master to act for him, it carries with it, by implication, authority to do all things necessary to its execu- tion, and the master is liable for his tortious acts, although 288 PECK v. N. Y. C. & H. R. R. R. CO. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. he depart from the private instructions of the master, provided he was engaged at the time in doing his master's business, and was acting within the general scope of his employment. The case of Bayley v. Man., Sheff. and Lincolnshire R. Co. (L. R., 7 Com. PI., 415 ; 4 Eng. Rep. [Moak's notes], 384), seems much like the one in hand. In this case a railway porter, having been intrusted with a general authority for certain purposes, in connection with the management of the carriages of his employers in the station where he was employed, the company was held liable for hia wrongful act in removing a passenger from a carriage which he erroneously thought was the wrong carriage. Now, in the case at bar, the brakeman was put in charge of the cars with a view to secure the proper and orderly seating of passengers. In carrying out this purpose he committed the act complained of. He was acting, therefore, within the scope of his employment. The case was tried upon the theory, and doubtless correctly in that regard, that he might suppress disorder and secure order among the passen- gers who should enter or desire to enter the cars. As a servant of the company he would have been protected in using all necessary force to secure that end ; and it must follow, therefore, within the doctrine of the cases cited, that the company would be liable for his wrongful acts in carrying such purpose into effect. There was no error in the refusal of the learned judge to nonsuit as requested. Nor was there any error in the admission or rejec- tion of evidence ; nor in the charge of the judge or in his refusal to charge as requested. But a serious difficulty arises on the point that the amount of damages awarded by the jury is excessive. It was on this ground that a new trial was granted on the former appeal. The former verdict was $5,000. This sum was deemed quite extravagant and palpably unjust, in view of the case made on the evidence. The verdict on the retrial was for $4,000. The case is quite similar on the proof to that before considered by the court, and the reduction in the sum now awarded by the jury seems much less than it should have been, in view of the remarks then made by the court. (4 Hun, 238, 239.) But even supposing the amount now awarded is deemed by the court large, is it within the province and duty of the court to grant another new trial on this ground? A second jury has considered the case under admo- PECK v. N. Y. C. & H. R. R. R. CO. 289 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. nition from the court, and has made some deduction from the sum before awarded. The subject of damages is for the jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been about equally capricious as has been the verdicts of juries. Little aid can be obtained on this subject by referring to cases, as will be seen on turning to the opinion of Mr. Justice HOGEBOOM, in Murray v. Hud. R. JR. E. Co. (47 Barb., 196). The verdict there was for $8,000, and a new trial was granted unless the plaintiff would reduce it to $6,000. This disposition of the case was directly against the decision in C'assin v. Delany (38 N. Y., 178), where it was held that the General Term had no power to order the reduction of the verdict to a sum named, as the alternative of a new trial. However, the decision in Mur- ray's Case was after this, in 1871, affirmed in the Court of Appeals. (48 N. Y., 655, n.) The affirmance in Murray's Case must be deemed to overrule the previous decision in Cassin v. Delany. It must be admitted, I think, that the verdict of $4,000 in this case is large, in view of the injury here proved ; but this sum having been awarded by a second jury, the case having been sent back for reconsideration on that point, and nothing appearing except the Amount, on which to predicate partiality, corruption or improper influence, I think the court must accept it as final and conclusive. The order appealed from must be affirmed, and the motion for a new trial on the case and exceptions must be denied, and the plaintiff is entitled to judgment on the verdict, with costs. LEARNED, P. J., and BOARDMAN, J., concurred. Order affirmed, with costs. HUH VOL. VIH 87 290 BROOKS v. HATHAWAY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. HENRY O. BROOKS, PLAINTIFF, v. CHARLES E. HATHA- AVAY AND E. E. HEATH, DEFENDANTS. Execution Exemption law Laws of 1859, chap. 134 duty of debtor, to dnim exemption within reasonable time. In the latter part of February, 1874, the defendant, a deputy sheriff, seized a wagon belonging to the plaintiff under an execution issued against him, and advertised the same to be sold on March tenth, but subsequently, at the request of the plaintiff, the sale was postponed. At the time of the levy the plaintiff owned three or four other wagons, all of which were subsequently, and prior to April fourteenth, disposed of by him. On the latter day the defendant took possession of the wagon and sold it, against the objections of the plaintiff who claimed that it was exempt under chapter 134 of 1859. In an action to recover for its conversion, held, that the plaintiff was bound to make his election within a reasonable time, and to notify the officer that he claimed the property as exempt, and that the question whether or not he had made his election within a reasonable time should, under the circumstances of this case, have been submitted to the jury. MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff. This action was brought to recover the damages sustained in consequence of the unlawful taking of a wagon belonging to the plaintiff. The defendants justified under an execution issued against plaintiff, in favor of one Sands. The defendant Heath is the deputy sheriff who levied and sold, and Hathaway aided him in so doing, and purchased the wagon. Plaintiff claimed that the wagon was exempt, under the exemption law. (Sees. Laws 1859, chap. 134.) The levy was made the last of February, 1874, and plaintiff had then four teams and three or four other wagons. The sale was advertised for March tenth. The deputy sheriff testified that, before that time, plaintiff had a conversation with him about adjourning the sale. Plaintiff testified that he knew of the levy ten or twelve days after it was made, and that he brought a letter to the deputy sheriff, from Sands, requesting him not to sell. The sale was postponed, and the property remained in plaintiff's pos- session. About April fourteenth, the deputy sheriff took actual BROOKS v. HATHAWAY. 291 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. possession of the property, and then plaintiff forbade him, claiming that the property was exempt. Meantime, the other wagons had been disposed of by plaintiff. On the trial the learned justice instructed the jury, as matter of law, that plaintiff was entitled to recover the value of the wagon, and defendants excepted. Defendants also asked the learned jus- tice to submit to the jury the question, whether the length of time which had elapsed before plaintiff notified the officer was not suffi- cient to estop him from claiming the wagon as exempt. This was refused, and defendants excepted. A. H. Sewell, for the appellant. It was a question of fact for the jury to determine, which one of the four teams of horses and which one of the four or five wagons constituted the plaintiff's necessary team, or whether in fact any team was necessary to the support of the plaintiff and his family. (Daius v. Prosser, 32 Barb., 291 ; Baker v. Brini/nall, 52 id., 193 ; Lockwood v. Young- love, 27 id., 507 ; Griffin v. Southerland, 14 id., 457 ; Smith v. Slade, 57 id., 637 ; Wilcox v. Hawley, 31 N. Y.. 656 ; Shaw v. Davis, 55 Barb., 392; Seaman v. Luce, 23 id., 257; Wilson v. Ellis, 1 Den., 462.) The plaintiff having failed to make known his election within a reasonable time, is presumed to have acquiesced in the levy, and is estopped from claiming that the property was exempt. (Seaman v. Luce, 23 Barb., 242 ; Lockwood v. Young- love, 27 id., 508.) Oscar H. Curtis, for the respondents. LEARN ED, P. J. : The plaintiff knew of the levy before March tenth ; at least the jury might have so found. There was some evidence, too, that shortly after that day he made arrangements to have the property sold before May thirteenth, to which time the deputy sheriff had postponed the sale. The claim that the property was exempt was first made about April fourteenth, more than a month after knowl- edge of the levy. Where the judgment debtor has other property, apparently exempt, or which might be exempt, under this act, he must within 292 CHENANGO BRIDGE CO. v. PAIGE. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. a reasonable time after knowledge of the levy, make his election, and give notice to the officer that he claims as exempt the prop- erty levied upon. (Seaman v. Luce, 23 Barb., 240; to the same effect is Smith v. Slade, 57 Barb., 641 ; and substantially Twinam v. Swart, 4 Lans., 263.) Nothing in Wilcox v. llawley (31 N. Y., 655) conflicts with this. There were not, in that case, two or more teams belonging to the debtor, any one of which he might elect to consider exempt. And when a judgment debtor has several teams and wagons, one of which has been levied upon to his knowledge, it would be unrea- sonable that he should wait for over a month, disposing, meantime, of his other wagons and teams, and then, for the first time, assert that this was his exempt wagon. Other questions were raised which we need not pass upon. We think it was erroneous to charge, as matter of law, that the plain- tiff was entitled to recover, and to refuse to submit the question whether the length of time which had elapsed was not sufficient to prevent a recovery. It is not necessary to say whether the delay of a month, unex- plained, can be reasonable. A new trial is granted, costs to abide the event. Present LEARNED, P. J., BOCKES and BOABDMAN, JJ. New trial granted, costs to abide event. THE CHENANGO BRIDGE COMPANY, PLAINTIFF, v. CLINTON F. PAIGE AND FREDERICK LEWIS, SURVIV- ING EXECUTORS OF HAZARD LEWIS, DECEASED, DEFENDANTS. Decision of "highest tribunal" acts done under protection against penalty or forfeiture therefor. The Binghamton Bridge Company having, in 1855, erected a bridge over the Che- nango river, at Binghamton, within eighty rods of plaintiffs bridge, the plain- tiff in 1856 commenced an action to enjoin it from collecting toll thereon, on the ground that, by its charter, no bridge could be erected within two miles of the one previously erected by it. The plaintiff was defeated at the Circuit, and the judgment affirmed at the General Term and by the Court of Appeals, but sub- sequently reversed by the Supreme Court of the United States. CHENANGO BRIDGE CO. v. PAIGE. 298 THIRD DEPARTMENT, SEPTEMBEK TERM, 1876. In 1865 the Binghamton Bridge Company's bridge being carried away by a freshet, struck and carried away plaintiff's bridge. Plaintiff brought this action to recover the tolls unlawfully diverted from it by the other bridge, and dam- ages arising from its bridge being carried away. Defendant maintained that our courts having sustained the validity of the statute incorporating the Bing- hamton Bridge Company, defendants' testator was protected by 2 Revised Statutes, 602, although the decision of our courts had since been overruled. Held, that this was not so for the reason : first, that the bridge was not built after any decision of our courts had given a construction to the act ; and, second, that the recovery of damages by reason of the loss of toll was not a penalty or forfeiture. Held, further, that the principle laid down in Harris v. Jex (55 N. Y., 421), that a person had a right to rely upon the decision of the highest tribunal of the land upon any question, and was not bound to foresee that it would be reversed, was not applicable, as the decision of the Court of Appeals was not the decision of the highest tribunal of the land, upon the matter involved. MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Terra. This action was brought to recover for damages occasioned by the erection of a bridge across the Chenango river at Binghamton, by the Binghamton Bridge Company. The plaintiff was incor- porated by chapter 89, Laws of 1805, and authorized to build a bridge across the Chenango river at Binghamton. The act declared " that it shall not be lawful for any person or persons to erect any bridge * * * within two miles either above or below " plain- tiff 's bridge. The plaintiff built and maintained the bridge until it was swept away in 1865. In 1855 an act was passed incorpo- rating the Binghamton Bridge Company, and authorizing it to construct a bridge across the Chenango river at Binghamton, at a point not less than eighty rods from the plaintiff's bridge. The defendants' testator, Hazard Lewis, became a stockholder in the Binghamton Bridge Company, was always a director in it, was at times its president, and as a contractor built their bridge, and under their direction did some repairs on it as late as 1862, and died the 2d day of July, 1863 ; and the defendants, as exec- utors of hie will, qualified on the 15th of July, 1863. Plaintiff notified Hazard Lewis that it " would hold him, the aid Hazard 'Lewis, personally responsible for the erection of such % bridge and for all the consequences thereof." In May, 1856, plaintiff brought an action against the Binghamton Bridge Com 294 CHENANGO BRIDGE CO. v. PAIGE. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. pany to enjoin it from constructing and using its bridge, and iron? collecting tolls, and for damages. The action was tried at Special Term before Mr. Justice GKAY, who dismissed the complaint iu January, 1858, and thereon judg- ment was entered March, 1858, which was affirmed on appeal by the General Term and Court of Appeals. A writ of error was then brought, taking the case to the Supreme Court of the United States, in which court the judgments were reversed in December, 1865, and the cause remanded to the Supreme Court, with direc- tions to enter judgment for plaintiff, etc. A new trial was had before Mr. Justice BOARDMAN, who, in November, 1866, rendered a decision granting the prayer in plain- tiff's complaint, with damages. Defendant appealed from this decision to the General Term in January, 1867, where Judge BOAKDMAN'S decision was affirmed, and final judgment in that action was entered in favor of plaintiff against the Binghamton Bridge Company, November 19, 1867. After the said Lewis' death, and in the same year, the plaintiffs took down their bridge and rebuilt it in the year 1864. The bridge of the Binghamton Bridge Company was swept away by the flood of 1865, and was carried by the stream against the plaintiff's bridge, and that was carried alon^ with it. This action, commenced on the 23d day of March, 1869, was brought to recover the tolls diverted from Ov plaintiff's bridge, and for the loss of the bridge itself. One trial was had and plaintiff recovered ag*\st these defend- ants, but a new trial was granted by the Genera) Term in this department (see 63 Barb., Ill), on the ground that improper evi- dence was admitted. A retrial was had, vhen plaintiff agair succeeded. Chapman <& Martin, for the plaintiff. Giles W. Hotchkiss, for the defendants. LEARNED, P. J. : This cause has already been once before this court, and the decision is reported 63 Barbour, 111. A majority of the court seem CHENANGO BRIDGE CO. v. PAIGE. 295 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. to have then held that the plaintiff might maintain both causes of action, set forth in the complaint. We are bound by that decision, which was followed by the learned justice who last tried the cause. If we were not, I should adopt the views of Mr. Justice PARKER in his dissenting opinion. The right of riparian owners to con- struct such a bridge is not disputed. It was the permitting of the same to be used by the public, free or for toll, which was held to violate the plaintiff's rights. (The Binghamton Bridge, 3 Wall., 51.) But the construction, which was lawful, not the use, which was unlawful, contributed to the destruction of plaintiff's bridge. I understand that the majority of the court also held that Lewis (and therefore his estate), was liable for what the corporation did, or for what he did, as its agent, in constructing the bridge, and was also liable for the loss of tolls which the plaintiff suffered through the illegal use of the bridge by the corporation which owned it. That decision concludes us, although I cannot assent to the doctrine. One point is made by the defendants which was not presented to the court on the former argument. That is, " that the construc- tion of their statutes by our own courts having sustained the posi- tion and conduct of the Binghamton Bridge Company, defendants' testator is protected, although the decision of our courts has since been reversed." To support this the defendants cite 2 Revised Statutes ( 1 [66], part 3, title 3, art. 1 [in. p.], 602). But the building of the bridge was not after an}' decision of the Supreme Court giving construction to the act. And the recovery for dam- age by reason of the loss of the tolls cannot be called a penalty or forfeiture. The defendants further urge that the principle decided in Harris v. Jex (55 N. Y., 421), applies. In that case it was held that where the highest tribunal in the land has decided a question, a person had a right to repose on such decision ; that he was not bound to foresee that the same tribunal would reverse its decision the next year. But, in the present case, the highest judicial tri- bunal in the land has never decided that the Binghamton Bridge Company had a right to maintain a public bridge, or to take toll. That question was in dispute, at all times, from the commencement of the former suit in May, 1856, to the decision of the United 296 HILL v. SYRACUSE, B. & N. Y. R. R. CO. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. States Supreme Court, in December, 1865. On the point involved the Court of Appeals was not the highest tribunal. Again, in the present case the plaintiff seeks to recover for the tolls which it ought to have received, and which were in fact received by the Binghamtou Bridge Company. The latter ought not to retain the benefit of its own unlawful act. But in Harris v. Jex the defendant endeavored to defeat the foreclosure of a mortgage by proof of a mere tender of the amount in national currency, made at a time when, by the decision of the United States Supreme Court, only gold was a legal tender, under the circumstances of that case. So that if a retroactive effect had been given to the subsequent reversal by that court of its own decision, the plaintiff would have lost the lien of his mortgage without receiving payment of his debt, under the harsh rule of Kortright v. Cody (21 N. Y., 343). Following, as we are bound to do, the former decision of this court, we are compelled to deny the motion for a new trial and to order judgment on the verdict, with costs. Present LEARNED, P. J., and BOOKES, J. BOABDMAN, J., not acting. Motion for new trial denied and judgment ordered for plaintiff on verdict, with costs. SILAS R. HILL, PLAINTIFF, v. THE SYRACUSE, BING- HAMTON AND NEW YORK RAILROAD COMPANY, DEFENDANT. Parol contract when not merged in subsequent written contract Bitt of lading. Plaintiff delivered a quantity of wool to the defendant in pursuance of, and relying upon a parol contract that it should be shipped within two weeks ; afterwards and upon the same day receipts were given to him by which defendant was exempted from all liability arising from delay; plaintiff did not examine the receipts, except to see that the weights were correct, until the next day, nor did he discover the condition until that time. The wool was not shipped for two months, by which time the price had declined nearly thirty cents per pound. In an action to recover the damages occasioned by the delay HILL v. SYRACUSE, B. & N. Y. R. R. CO. 297 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. held, that the parol agreement was not merged in the receipts, and that the plaintiff was entitled to recover. BottwMcv. Bolt, and Ohio R. JR. Go. (46 N. Y., 712) followed. MOTION for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict by the jury in favor of the plaintiff. R. A. Stanton, for the plaintiff. Oeo. N. Kennedy, for the defendant. The written contract and receipt, with the conditions and rules forming a part thereof, is the actual agreement between the parties, and being in the nature of a contract, limiting the common-law liability of common carriers, cannot be altered, changed or modified in its legal effect, by parol evidence of any talk between the plaintiff and the freight agent of defendants, preceding its execution. (Long v. N. T. 0. R. R. Co., 50 N. Y., 76; Belger v. Dinsmore, 51 id., 166 ; Collender v. Dinsmore, 55 id., 204 ; Steers v. Liverpool, New York and Phila- delphia Steamship Co., 57 id., 1 ; Magnin v. Dinsmore, 56 id., 168; Steiger v. Erie Railway Co., 12 S. C. N. Y. [5 Hun], 345.) BoAKDMAN, J. : The plaintiff delivered a quantity of wool at defendant's depot, at Whitney's Point, to be carried to New York city. Plaintiff gave evidence tending to show that before the delivery of the wool he made a parol agreement with the person in charge, that the wool should be shipped by defendant within two weeks, and that upon the faith of such agreement, the delivery was made. Afterwards, and on the same day, as plaintiff was about to start for his home, some twenty-six miles distant, he received from defendant's agent at the depot, some receipts for the wool, but examined them no further than to see that the weights were correct, and then put them in his pocket, and did not notice the conditions thereon until next day. By such conditions the defendant was exempted from liability arising from any delay. The wool was not shipped until nearly two months after. In the mean time the value of the wool in market had fallen off nearly thirty cents per pound. The plaintiff brings this action to recover this difference in value as damages, relying upon the breach of the parol contract to ship HUNVOL. VHL 88 298 HILL v. SYRACUSE, B. & N. Y. R. R. CO. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. within two weeks. The defendant relies upon the terms and con- ditions of its receipt given to plaintiff, whereby it claims to be exempt from liability. The case has been three times tried, the plaintiff succeeding on each occasion. The verdict of the jury establishes the making of the parol con- tract as alleged by plaintiff, the delivery of the wool thereunder, and the subsequent acceptance by plaintiff of the receipts without notice or knowledge, on that day, of their contents ; it also estab- lishes, so far as it can be a question of fact, that it was not plain- tiff's intention to make such a contract as is contained in the printed matter contained on the receipts, nor to merge or extin- guish his prior parol contract by the acceptance of such receipts. All that remains for us to decide is, whether, as a matter of law, the receipt expresses the contract between the parties ; if it does, the plaintiff is remediless. Otherwise, the verdict of the jury will be conclusive, and must stand. The case of Bostwick v. Bait, and Ohio R. R. Co. (45 N. Y., 712) was relied upon at the Circuit. In that case, RAPALLO, J., says: "The verbal agreement had been acted upon, and under it plaintiff had parted with all control over his goods. The rule that the prior negotiations are merged in a subsequent written contract, does not apply to such a case as this. If the plaintiff had expressly assented to the terms of the bill of lading subsequently delivered to him, such assent would operate as a change of the contract origi- nally made, and under which he had parted with his property, but after the verbal agreement had been consummated, and rights had accrued under it, the mere receipt of the bill of lading, inadver- tently omitting to examine the printed conditions, was not suffi- cient to conclude the plaintiff from showing what the actual agree- ment was under which the goods had been shipped." This lan- guage applies directly to the case under consideration. The goods in the case cited had been in fact shipped when the receipts were delivered. It was therefore impracticable for the shipper to resume possession of his property. In the present case, it was in the power of the plaintiff to surrender his bills of lading, and resume possession of his wool, but it is not apparent how that cir- cumstance affects the principle enunciated. In either case the con- tract actually made between the parties, by which the defendant HILL v. SYRACUSE, B. & N. Y. R. R. CO. 299 THIKD DEPARTMENT, SEPTEMBER TERM, 1876. acquires possession and control of the property, is made to prevail rather than a contract which was not within the intention of plaintiff, and probably not within the intention of the agent of the defendant. In either case it was the substitution by carelessness and mistake, of the usual bill of lading, instead of adapting it to the contract actually made. So this verdict might stand if the bill of lading had been delivered simultaneously with the delivery of the property, if the jury was satisfied of the mistake. (Long v. N. T. C. R. R. Co., 50 N. Y., 76.) There is no evidence of any intention to modify the parol contract when the receipts were given. If that effect is produced, it will be in obedience to a pre- sumption arising from the contents of the receipts, proved by plain- tiff to be false, and without any positive evidence of its truth. The same principle is again affirmed in Coffin v. N. Y. G. R. R. Co. (64 Barb., 379 ; affirmed in the Court of Appeals without an opinion, 56 N. Y., 632; Goodrich v. Thompson, 44 N. Y., 324.) Unless there be some rule of law compelling us to recognize a merger of a parol agreement in a subsequent written contract, in the absence of and in hostility to such an intention, the parol agreement in this case should stand, because under the verdict of the jury it is the agreement under which the parties acted, in the delivery by one and the acceptance by the other of the property. By what right, then, can the defendant, without express evidence of assent on the part of the plaintiff, change such contract so as to exempt it from a duty and liability specially contracted for? Courts do not favor the doctrine of merger where it would violate the intention of the parties, and work injustice. ( Wiibeck v. Waine, 16 N. Y., 532.) If these conclusions are correct, no error was committed in declining to charge the jury that the receipts fur- nished the evidence of the contract, and that the parol contract was merged in the receipts and conditions thereto annexed. No exception appears to have been taken to the charge as made in reference to these contracts, nor was there any request to submit to the jury to find and determine the intention of the parties, touching the effect to be given to the receipts. I have assumed, for the purpose of this opinion, that if the terms of the receipts controlled, the defendant would not be liable. I think that is true, because there is no evidence of gross negligence 800 PRENTICE v. WHITNEY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. on the part of the defendant in not sooner forwarding the wool ; the effect of storms upon the road necessarily delayed the shipment of property. But in any event that would be a question of fact for the jury, and if it is of any importance in this case it has been found against the defendant. I do not see any error in the other points urged by the defend- ant why a new trial should be had. For the reasons given, the motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict with costs. Present LEARNED, P. J., and BOARDMAN, J. BOCKES, J., not acting. New trial denied and judgment ordered on the verdict, with costs. As to the duty of the shipper in ordinary cases to examine the contents of a receipt, see Kirkland v. Dins/more (62 N. Y., 171). [REP. JONAS PRENTICE, RESPONDENT, v. SOPHIA WHITNEY AND OTHERS, EXECUTORS, ETC., OF GEORGE WHITNEY, DECEASED, APPELLANT. Executors Notice to creditors, to present claims notice, when sufficient 2 R. S., 88, 84, 88. The defendants, executors, in pursuance of 2 Revised Statutes, 88, section 34, pub- lished a notice to creditors to present their claims, the notice being in the usual form except that the word "requested " was used instead of " required." Held, that there was no substantial difference between the words "request" and ' ' require " as the latter was used in the statute, and that the notice was sufficient. APPEAL from judgment in favor of the plaintiff, entered on the report of a referee. Chapman cfe Martin* for the plaintiff. Richards <& Sessions, for the defendants. BOARDMAN, J. : This is an action against the defendants as executors, etc., of George Whitney, deceased, to recover a claim existing against the testator in his lifetime. Pursuant to an order of the surrogate the PRENTICE v. WHITNEY. 801 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. defendants published a notice to creditors to present claims, which was duly published for six months. Within that time this claim was presented to defendants, and ultimately rejected by them. No offer to refer was made by either party. More than six months after the rejection of plaintiff 's claim by the defendants this action was brought. The answer sets up the short statute of limitation. If the form of the notice to creditors be sufficient, the plaintiff's action is barred thereby. The notice is in the usual form, except that the word " requested " is used where, ordinarily, the word " required " is inserted in the notice, so that the creditors of the estate are requested to exhibit their claims, with the vouchers, etc. The plaintiff claims, and the referee held, that such notice " was not such a compliance with the statute which authorizes executors and administrators to insert a notice 'requiring' all persons having claims against the deceased to present them, as to bar the plaintiff from maintaining his action, although he did not commence it within six months after the rejection of his claim by the defend- ants." This decision is alleged to be erroneous, and if se the judg- ment for the plaintiff should be reversed. It is conceded that this short statute of limitation is penal in its character (2 R. S., 88, 34, 38), and should be strictly construed. A strict construction, however, should not lead to a destruction of the object of the statute. The purpose was that the persons having claims against the estate might present them, so as to facili- tate the settlement of the affairs of the deceased. To facilitate such object the surrogate may, at or after a certain time, order a notice given to the creditors by publication, once a week for six months, in a paper to be named, to present their claims. That notice need not use the precise language of the statute if it convey the same meaning. The essentials of the law should be complied with. The form is nothing, the substance every thing. It appears to me that there is no reasonable difference in the connection between the words " request " and " require." Both words have the same origin. Usage has given to them somewhat different meanings, which, however, are more distinctions in inten- sity than in effect or substance. The latter is nearer a command than the former. Yet neither, under this statute, is a command or any thing more than a notice. It is optional with the creditor tc 302 SAUSER v. PEOPLE. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. present his claim or not, whatever the words used in the notice. The consequences of his neglect are fixed by the statute. Notice is given, in either form, to present claims. That, I think, is suffi- cient. In Hoyt v. Bonnett (58 Barb., 529), the notice did not con- tain the word " required," yet its sufficiency was not questioned either in the Supreme Court or in the Court of Appeals. (50 N. Y., 538.) The neglect of either party to offer to refer does not affect the subject under consideration. (National Bank of FishkiU v. Speight, 47 N. Y., 668.) The conclusion reached in the discussion of the subject of the sufficiency of the notice, renders it unnecessary to consider the other questions raised by the appellants. For the reason that the notice was sufficient, and the plaintiff's action is barred by neglect to prosecute within six months after the rejection of the plaintiff's claim by the defendants, the judgment must be reversed and a new trial granted, with costs to abide the event. Present LEARNED, P. J., BOAEDMAN and BOOKEB, J J. Judgment reversed, new trial granted and reference discharged, costs to abide the event. CAEOLINE SAUSER, PLAINTIFF IN ERROR, v. THE PEOPLE OF THE STATE OF NEW YORK DEFENDANT IN ERROR. Indictment for marrying a married person sufficiency of allegation* as to prior marriage 2 R. S. (Edm. ed.\ 710, 11. The plaintiff in error, an unmarried woman, was convicted under 2 Revised Statutes (Edm. ed.), 710, section 11, of unlawfully marrying one Simons, he being then a married man. The indictment alleged the marriage, and further, " she, * * * at the time of marrying * * * the said Conrad L. Simons, well knowing that the said Conrad L. Simons was then and there the lawful husband of Anna M. Simons, and bad previously been lawfully married to the said Anna M. Simons." It contained no other allegation as to the marriage of Conrad L and Anna M. Simons. Held, that the indictment was fatally defective, in that it did not sufficiently allege the marriage of the said Conrad L. and Anna M Simons. SAUSER v. PEOPLE. 303 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. WRIT of error to review the conviction and sentence of plaintiff in error, by the Albany County Sessions. The plaintiff in error was indicted and convicted for a violation of 2 Revised Statutes (Edm. ed.), 710, section 11, in marrying one Conrad L. Simons, who was at the time a married man. The only allegation in the indictment as to the former marriage of Simons, was the following, viz. : She, the said Caroline Sauser, alias Carline Sauser, then and there, at the time of marrying and taking as her husband the said Conrad L. Simons, well knowing that the said Conrad L. Simons was then and there the lawful husband of one Anna M. Simons, and had previously been lawfully married to the said Anna M. Simons ; she, the said Caroline Sauser, alias Carline Sauser, then and there, at the time of marrying and taking as her husband the said Conrad L. Simons as aforesaid, well knowing that the said Anna M. Simons, the lawful wife of the said Conrad L. Simons, was alive and in full life. The plaintiff in error moved in arrest of judgment, on the ground that the indictment was . fatally defective, in that it failed to allege the former marriage of Simons. Reilly (& Hamilton, for plaintiff in error. The indictment is defective in not charging positively that Simons was a married man, and the allegation that plaintiff in error knew him to be such, does not meet that requirement. (Reg. v. Pelham, 4 N". Y. Leg. Obs., 399 ; People v. Gates, 13 Wend., 317 ; State v. Haider, 2 McCord, 379 ; State v. Hathcock, 7 Iredell, 52 ; Moore v Com- monwealth, 6 Mete., 243.) John M. Bailey, district attorney, for the people. BOABDMAN, J. I This case comes before us upon the record of judgment, no bill of jxceptions having been made. The plaintiff in error was convicted nnder 2 Revised Statutes (Edm. ed.), 710, section 11, for an unlaw- ful marriage with one Conrad L. Simons, then being married, tnd having a wife living, the plaintiff in error being an unmarried 304 SAUSER v. PEOPLE. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. person, and knowing that Simons was married and had a wife living at the time. There are three counts in the indictment, each of which charged the marriage, and added : she, the plaintiff in error, at the time of her marriage with Simons, well knowing that said Simons was the lawful husband of one Anna M. Simons, and had been previously lawfully married to her ; she, said Caroline, at the time of said mar- riage well knowing that the said Anna M. Simons was alive and in full life. In no other way was it charged in the indictment that Conrad L. Simons and Anna M. Simons were at the time of such marriage husband and wife, and then living. After a verdict of guilty, and before sentence, counsel for plaintiff in error " moved in arrest of judgment, and upon the indictment." Counsel were heard in support of, and in opposition thereto, and the motion was denied. After sentence, this writ of error was allowed. The plaintiff in error now insists that the indictment was defect- ive, in not charging that Simons was a married man. To consti- tute the crime an unmarried person must knowingly marry the husband or wife of another, etc. It must be charged that Conrad and Anna were, at the time, husband and wife ; has that been done ? I think not. The marriage between plaintiff in error and Conrad is sufficiently alleged, and then is added what the plaintiff in error well knew concerning the relations between Conrad and Anna, but it is not charged as a fact tL^t Conrad and Anna were husband and wife ; it may be inferred from the knowledge asserted to have been possessed by plaintiff in error that they were married, but that, I think is not sufficient ; whatever is necessary to be proved must be stated in the indictment positively and with certainty. (People v. Allen, 5 Den., 76.) What the plaintiff in error knew, was material, but the relations between Conrad and Anna were equally material ; the former is fully set forth, the latter were not. In Houser v. The People (46 Barb., 33), it was held that an indict- ment under section 10 of the same article of Revised Statutes, was defective in not alleging the apprehension of the defendant in the county in which he was indicted, for the reason that it was an essential fact to authorize a conviction. To the same effect are Haxkvtis v. The People (16 N. Y., 344); Regina v. Pelham (4 K Y. Leg. Obs., 399) ; Enright v. People. (21 How., 383) ; People \ COVERT v. HUGHES. 805 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. Gates (13 Wend., 317). The precision and certainty required in criminal pleading, will not admit any thing to be taken by intend- ment. (Com,, v. Moore, 6 Mete., 243; 1 Wharton's Criminal Law, 285, 287, 367.) The indictment must show what offense has been committed by positive averment ; it is not, sufficient that it appears by inference. (Id., 367 ; Com. v. Griffin, 21 Pick., 525 ; King v. Home, Cowper, 683, 684.) For the reasons stated, I think the indictment was fatally defect- ive. The defect is one of substance, and not of form (Houser v. Pe<,jJ,e, ante) ; hence it is not cured by 2 Revised Statutes, 728, section 52. The grounds upon which the motion in arrest was made are not stated in the record, but the motion appears to have been argued by counsel on either side ; I think it may be presumed that the same ground was taken in the court below. As the objection is one which could not be obviated, no harm can arise from a neglect to state it in the record. I think the conviction and judgment should be set aside, and the prisoner should be discharged. Present LEARNED, P. J., BOARDMAN and BOOKES, JJ. Judgment reversed and prisoner discharged. SYDNEY COVERT AND JAMES COVERT, RESPONDENTS, v. MAHAL A HUGHES IMPLEADED WITH ANOTHER, APPELLANT. Married women act chapter 90 of 1860 when separate estate of married woman chargeable under debt contracted by her as his agent. Under section 1 of chapter 90 of 1860, providing that the property of any married woman shall not be liable for the debts of her husband, " except such debts as may have been contracted for the support of herself or her children, by her as his agent, " her estate is liable for the price of goods purchased by her as his agent, which were necessary for and used in the support of herself and her children. APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. HUN VOL. VIII. 39 806 COVERT v. HUGHES. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. H. JBoardman Smith, for appellant, Mahala Hughes. E. P. Hart, for the respondents. BOARDMAN, J. : This appeal is taken by Mahala Hughes alone, she being the wife of John Hughes, from the judgment which charges her real estate with the payment of $496.27, originally charged by the plaintifla to her husband, besides costs of this action. The defendant Mahala Hughes is justly indebted to the plain tiffs for feed, etc., purchased by defendant of plaintiffs, and fed to her cattle, horses and other stock owned by her and constituting a part of her separate estate. She is also indebted to plaintiffs for insurance premium paid by them upon defendant's house, also a part of her separate estate. Both these amounts were contracted and applied for the benefit of Mahala's separate estate. The decision at Special Term makes the amount of these items at the date of the decision, including interest, $134.87. Such decision is sustained by the evidence. Indeed, the facts are uncontradicted. This sum is part of nearly $800 originally charged by plaintiffs to the defendant John Hughes, and being for a balance of such account for which the defendants gave their joint and several promissory note, in the usual form, to the plaintiffs. Afterwards the plaintiffs sued the defendant John Hughes, upon such note, and recovered judgment for the sum due thereon, with a small balance of account which had accrued after the date of such note. Such judgment does not merge any claim which plaintiffs may have against Mahala by reason of said note, or of the indebtedness thereby secured. There might have been an extinguishment of plaintiffs' right of action upon the note after the recovery against John, if it had been a joint note only. It is also found, by the decision at Special Term, that the sum of $300, at least, of said account of $700 or $800, was for goods purchased by the defendant Mahala as the agent for her husband, and that such goods were used for the support of herself and her children. The learned judge then holds her real estate charged with that portion of the debt so contracted for the support of herself and her children. Such conclusion is founded upon the language of the act of 1860 (chap. 90, 1), whereby the property of a COVERT v. HUGHES. 307 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. married woman shall not be liable for her husband's debts, " except such debts as may have been contracted for the support of herself or her children, by her as his agent." There is abundant evidence to justify the conclusion that the wife purchased of plaintiffs at least $300 in value of the goods, as the agent of her husband, and that such goods were necessary for, and used in the support of herself and her children. This brings the recovery in this respect within the strict letter of the law. But it is claimed that this provision of the statute is a palpable error, and that the legislature never intended to create such a provision. This view is sustained by the New York Superior Court. (De Mott v. McMullen, 8 Abb. Pr. [N. S.j, 335.) In the opinion of FREED- MAN, J., the learned judge presents, with much force of reasoning, the inconsistency of such a provision in the law relating to the separate estate of married women, whereby the wife, in certain events, may be compelled to assume the duty of the husband, and support herself and family out of her separate estate. He con- cluded that the sentence has been changed in its meaning by the unintentional transposition of the pronouns " him " and " her," and should read, " by him as her agent," instead of " by her as his agent." But in the end the judge declined to adopt a construction which demands a reversal of the very words used by the legislature, doubt- ing the power, not less than the propriety of such an act. The case is then disposed of upon other questions presented. What- ever is said in that case upon the construction of the statute was obiter, was not then accepted as the law of the ease, and hence is not binding upon us. Entertaining the same sense of the power and propriety of such a construction as is now contended for by the defendant Mahala, we shall abide by the plain language of the law, leaving the legis- lature to correct the error, if one exists. Nor do the cases cited by defendants' counsel conflict with this view. In Smith v. Allen (1 Lans , 101), the question was not presented, discussed, or decided. In Baken v. Harder (6 N. Y. S. C. [T. & 0.], 440), and Weir v. Groat (11 S. 0. N. Y. [4 Hun], 193), the wife did not buy as the agent of her husband. In each case she bought on her own credit and undertook and agreed to pay for the goods so purchased. 808 COVERT y. HUGHES. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. The Special Term gave judgment for the plaintiffs for $496.27, being for such portions of the property as went to the benefit of the defendant Mahala's separate estate, and such as she bought for the support of herself and children, together with interest thereon. We have examined the principles upon which such recovery was had, and find it can be sustained. The findings embrace many other facts which have been the subject of criticism by defendants' counsel, but we do not see that such findings were material to the case as it was decided. It is not, therefore, deemed necessary to consider them upon this appeal. If the view we have taken be correct, the property of Mahala Hughes, defendant, has been properly charged with the payment of nearly $500 out of a total indebtedness, including interest, of nearly $900. For the reasons suggested, the judgment should be affirmed, with costs. LEARNED, P. J. : I concur in the result of this opinion, but I am not confident that there is any error in the language of the act of 1860. The act declares that " her property shall not be liable for his (her husband's) debts, except such debts," etc. The debts excepted, therefore, by this clause, are a certain class of his debts. It would be idle to say that her property shall not be liable for his debts, except for certain of her own debts. A debt contracted by a married woman, as her husband's agent, is his debt. One contracted by him, as her agent, is her debt. The statute exempts her property from liability, for his debts, except such as were contracted for the support of herself or her children (not his\ and as were not only contracted for such sup- port, but actually through her agency. I suppose that the legisla- ture thought it would be unjust, when a married woman should actually purchase food and clothing for herself and her children, that the creditor should not be allowed to collect the debt out ot her property, because the purchases had been made (as in law it probably would be) as the agent of the husband. I think so myself. Present LEARNED, P. J., BOARDMAN and BOOKES, JJ. Judgment affirmed, with costs. MABIE v. JOHNSON. 3U9 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. JOHN M. MABIE, APPELLANT, v. DANIEL JOHNSON, RESPONDENT. Promissory note duty of purcJia&er notice, sufficient to require inquiry. In an action by the plaintiff, a bonafide purchaser, before maturity, of the follow- ing note: GUILFORD, Nov. 29, 1870. For one Hinckley knitting machine warranted, I promise to pay J. H. Well* or bearer thirty dollars, one year from date with use. DANIEL JOHNSON. the defendant offered to prove a parol warranty of the machine and breach thereof, and claimed to recoup damages therefor. Held, that the evidence was inadmissible. APPEAL from a judgment of a county judge, reversing a judg- ment of a justice of the peace in favor of the plaintiff. Calvin L. Tefft^ for the appellant. Isaac S. Newton, for the respondent. BOARDMAN, J. : This action was brought upon a negotiable promissory note as follows : " GUILFORD, Nov. 29, 1870. " For one Hinckley knitting machine warranted I promise to pay J. H. Wells or bearer thirty dollars one year from date with use. " DAN IEL JOHNSON. " This note was transferred for value to the plaintiff, before it became due, without any knowledge of the transaction out of which the note arose except what is contained therein, nor did the plain- tiff have any notice or reason to suspect that the defendant had any defense to said note. Upon the trial before the justice, the defendant offered to prove a parol warranty of the machine in certain respects with a view of showing a breach of said warranty, and recouping the damages. This evidence was rejected. The County Court held that euch decision was erroneous upon the ground that the word " warranted " m the note was sufficient notice of the defendant's equities to put the plaintiff upon inquiry as to the terms of the warranty, and that he took the note subject to all damages sustained by the 810 MABIE v. JOHNSON. Tin KI> DKPA KTME.NT, SEPTEMBER TERM, 1876. defendant for a breach of such warranty ; that the plaintiff stood in no better situation in this respect than the payee would have done, had he brought Muit on the note. I think the learned county judge is in error in the view he took of the case, and that within the authorities the plaintiff was a bona fide holder of the note in suit, so as to deprive the defendant of his defense. The progress of the law on this subject is given in 1 Parsons on Bills, 258, et seq. The result of the English decisions is there laid down to be, " that the holder of negotiable paper does not lose his rights by proof that he took the paper negligently." That notice of facts which would defeat his recovery must not be ambiguous. The same doctrine is maintained in the American courts. ( Welch v. Sage, 47 N. Y., 143 ; Magee v. Badger, 34 id., 247 ; Belmont Bank v. Hoge, 35 id., 65 ; Lord v. Wilkinson, 56 Barb., 593, and the cases cited.) In Magee v. Badger (supra), PORTER, J., says : " He, the purchaser, is not bound, at his peril to be upon the alert for circumstances which might probably excite the suspicions of wary vigilance. He does not owe the party who puts negotiable paper afloat the duty of active inquiry to avert the imputation of bad faith." In Lord v. Wilkinson (supra), and Raphael v. Bank of England (17 C. B., 161 ; S. C., 33 Eng. L. and Eq., 276), actual notice of the theft of the securities was given, yet it was held that the forgetting, or omitting to look for the notice, was not evidence of mala fides, more than negligence must be proved ; fraud, mala fides, must be shown. These cases seem to me to sustain the position of the justice upon the trial. The words, " for one Hinckley knitting machine, warran- ted," express the consideration of the note. Giving to the words the broadest meaning possible, they do not imply that there has been a breach of the warranty, by which the defendant has sustained damages. They cannot be construed as notice to the purchaser, of a defense to the note in the hands of the payee. If they do, it must be because the law will presume a breach wherever there is a warranty. That would be preposterous. There was nothing, therefore, which showed, or tended to show, to the purchaser, or even to excite his suspicions, that any defense to the note in suit existed, when he purchased it. He is therefore entitled to protection against defend ant's counter-claim. LOOMIS v. MOWRY. 311 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. It follows that the judgment of the County Court should be reversed, and that of the justice be affirmed, with costs. Present LEARNED, P. J., BOARDMAN and BOOKES, JJ. Judgment of County Court reversed, and that of justice affirmed, with costs. ELAM LOOMIS, APPELLANT, v. LE EOT MOWRY, JOHN T. MASTERS AND WARREN BRIGGS, RESPONDENTS. Complaint cause of action Presumption that the face of a note is its value. Where a complaint alleged that defendants received from the plaintiff his promia sory note for $584, indorsed by one Sanborn, upon the agreement that they would return the same before maturity; the maturity of the note; a failure to return the same and a sale thereof by defendants before maturity, held, that it stated facts sufficient to constitute a cause of action. ' The presumption is, that the value of a promissory note is the face thereof. APPEAL from an order dismissing the complaint, herein, on the ground that it did not state facts sufficient to constitute a cause of action. The complaint alleged " that in September, 1870, said defendants received of plaintiff his promissory note in writing, dated August 1st, 1870, whereby he promised to pay to the order of J. K. Sanborn, four months after date, $534, at the First National Bank of Waterbury, and which said note was indorsed by said J. K. Sanborn. That said defendants received said note upon the agreement, that same should be returned to plain tiff before the maturity of said note. That said note matured and became payable on the 4th day of December, 1870, and before the commencement of this action. That said defendants have not returned said note to plaintiff, but before maturity thereof sold and disposed of said note at the Washington County Bank. That said note was of the value of $534." Hughes <& Northup, for the appellant. U. G. Paris, for the respondents. 812 LOOMIS v. MOWRY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. LKAK.N KI>, P. J. : We think that the nonsuit on the plaintiff's opening was erron eons. Under the complaint it might have been shown that the plain tiff had delivered his negotiable note, with Snnborn's indorsement, to the defendants on their agreement to return it to him before maturity ; that they had neglected so to return it, and had placed it out of their power so to do by disposing of it before maturity to a bona fide holder. The note is alleged to be of the value of it* face. The defendants insist that such allegation may only mean that Sanborn's indorsement gave it that value. But, even if this were so, it might be that the plaintiff was bound to protect San born. And, at any rate, the general principle is settled, that the value of a promissory note is prima facie its face. (Potter v. Merchants 1 Bank, 28 N. Y., 641.) According to the complaint, which must have been taken as admitted, the defendants have made the plaintiff liable to an action for the amount of that note. There must be a right of recovery for that wrongful act, even though it should be possible for the defendants, on the trial, to reduce the damages from the prima facie amount. If the plaintiff could not sue the defendant until he had been himself sued on the note, his right of action might be outlawed. BOOKES, J. : The complaint was dismissed on the ground that it did not state a cause of action. Considered as an action on contract, the complaint states a valid agreement between the parties, performance by the plaintiff, and a breach on the part of the defendants. These averments give a cause of action ; at least for nominal damages. And considered as an action in tort for the misappropriation of a note, the complaint avers the misappropriation, and with the other facts stated, shows a right of recovery. It is urged that it is not made to appear that the plaintiff suffered damage. The claim is for the non-return or misappropriation of a promissory note. The presumption is, that the note is of the value of the sum promised thereby to be paid. (28 N. Y., 641, and cases there cited.> HASTEN v. BLACKWELL. 313 THIKD DEPAKTMENT, SEPTEMBER TERM, 1876. We are of the opinion that sufficient was alleged in the complaint to put the case on its merits, without here determining whether it must be held to be an action of assumpsit or tort ; although we think the action might well be sustained, on the facts alleged, as an action of assumpsit. There must be a new trial, with costs to abide the event. Present LEARNED, P. J., BOOKES and BOARDMAN, JJ. New trial granted, costs to abide event. JOSEPH MASTEN, KESPONDENT, y. TOBIAS F. BLACKWELL, JOHN A. GROSS AND HENRY J. BUDDINGTON. Joint debtors death of one, during pendency of action revival of against hit repre- sentatives. In an action against A. B. and C., copartners, C. died; thereafter judgment by default was entered against A. and B. Afterwards, on motion, the administra- tor of C. was substituted in place of C. as sole party defendant. Held, error; that in such case the action against the administrator should be a new one, arising because of the original debt, the death of one joint debtor, the appoint- ment of his representatives and the insolvency of the surviving joint debtors, and not a continuance of the original action against all the joint debtors. APPEAL, from an order made at Special Term, reviving an action. The defendants were copartners, doing business under the firm name of Black well, Gross & Co. The action was brought by the plaintiff against the firm, to recover $450, claimed to be due him from the firm, for rent of a house and lot, alleged to have been leased to said firm. The summons was served on all the defendants. Blackwell and Gross did not answer. The defendant Buddington put in a sepa- rate answer. Pending the action, and on the 7th day of February, 1876, the defendant Buddington died. On the 8th day of April, 1876, the plaintiff entered judgment by default, against Blackwell and Gross, HUN VOL, VIII. 40 814 MASTEN v. BLACKWELL. Tin KD DEPARTMENT, SEPTEMBER TERM, 1878. for the amount of the rent claimed to be due, with interest and costs. Ou the 29th day of May, 1876, H. Joseph Buddington was appointed administrator of, etc., of the defendant Henry J. Bud- dington, deceased, by the surrogate of Ulster county. The attorneys for the plaintiff, upon affidavit of Reuben Bernard, one of his attorneys, dated June 17, 1876, and upon the pleadings and proceedings in the action, moved at Special Term, held at Kingston, on the 1st day of July, 1876, notice of motion having been served on the attorney for said Henry J. Buddington, for leave to revive and continue the action in the name of H. Joseph Bud- dington, as the administrator, of, etc., of said H. J. Buddington, deceased, in the place and stead of said deceased, as one of the defendants. The administrator appeared and opposed the motion. An order was made by said Special Term, allowing the plaintiff to proceed with and continue the action against said administrator, and to serve a supplemental or amended complaint, changing the title of the action, by making said H. Joseph Buddington, adminis- trator, etc., sole defendant. From this order H. Joseph Budding- ton appeals to this court. J. M. Cooper, for the appellants. Bernard & Fiero, for the respondent. Per Cwriam: When an action is pending against several joint debtors and one of them dies, the action cannot, with accuracy, be said to sur- vive against the representatives of the deceased debtor. The cause of action which may arise against them is not the simple common- law action on contract, which was originally brought against all the debtors. But it is an action of equitable character which arises on several facts : the original debt ; the death of one joint debtor ; the appointment of his representatives, and the insolvency of the surviving joint debtors. This, then, is a new action ; not a con- tinuance of the old. This distinction is important. It shows that the representatives of the deceased are entitled to have the claim, thus arising, pre VAN ORDER t>. VAN ORDER. 315 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. seined to them for allowance, or disallowance, according to the statute. They should not be brought in to contest the old action, in which, merely as representatives of the deceased, they cannot be liable. This is not a question of mere practice, but of legal liability. Perhaps it would be a wise change of the law to make the repre- sentatives of a deceased joint debtor, in all cases, jointly liable with the surviving joint debtors. But that is for the consideration of the legislature. The order must be reversed, with ten dollars costs and disburse- ments. Present LEARNED, P. J., BOOKES and BOARDMAN, JJ. Order reversed, with ten dollars costs and printing. HARRIET VAN ORDER, RESPONDENT, v. JAMES VAN. ORDER, APPELLANT. Husband and wife contracts between validity of Condonation of adultery. A wife having commenced an action against her husband for divorce on account of his adultery, entered into an agreement in writing with him, whereby in consideration of a sum of money to be paid to her by him, she agreed to dis- continue the action, to condone the adultery, to give up to him the custody of their child and relinquish her right of dower in his estate. In an action brought by her upon such agreement, Jield, that a wife has no power to enter into such a contract with her husband, and that the agreement to pay the money was void. A promise by a husband to pay money to his wife, in consideration of her con- doning an act of adultery committed by him, is in violation of the rules of law and public policy and will not be enforced by the courts. APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a jew trial, made upon the minutes of the justice before whom the action was tried. In 1866 the plaintiff commenced an action against the defendant for a divorce, on the ground of his adultery. Subsequently the 816 VAN ORDER v. VAN ORDER. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. action was discontinued in pursuance of an agreement by which sh agreed to condone his adultery, to give to him the care and custody of their child, and to execute any deed or conveyance proper to convey her right of dower in any real estate then owned or there- after to be acquired by him, in consideration that he should pay to her the sum of $600 in annual payments of fifty dollars each. Subsequently the defendant having procured a divorce from the plaintiff' on account of her adultery, refused to make any further payments under the agreement, and thereafter this action was brought by the plaintiff to recover such payments. Marcus Lyon, for the appellant. J. De MotU Smith, for the respondent. LEARNED, P. J. : This is an action on an agreement made during coverture between husband and wife, by which he agreed to pay her a cer- tain sum of money. The consideration is the discontinuance of an action brought by her against him for alleged adultery, the condo- nation of such adultery ; an agreement that he shall have the cus- tody of a child of the parties, and that she will relinquish her dower and claims on his estate. There are two defenses : first, that the agreement is void ; sec- ond, that the defendant has been divorced from the plaintiff for adultery, committed subsequently to the agreement. The so-called married woman's acts have not removed the gen- eral disability of married women. (Perkins v. Perkins, 62 Barb., 531.) A contract like this was void at common law. (Beach v. Beach, 2 Hill, 260 ; 1 Black. Cora., 442.) The plaintiff cites cases to show that a husband may now enter into such an executory contract with his wife. But they do not sustain that position. Rawson v. Perm. R. R. Co. (48 N. Y., 212), only held that paraphernalia, gifts of the husband, were now the prop- erty of the wife; Whitney v. Whitney (49 Barb., 319), that the wife could sue her husband for her property wrongfully converted ; Adams v. Curtis (4 Lans., 165), that she might sue a firm for her lervices, although her husband was one of the partners ; Wright v VILLAGE OF DEPOSIT v. DEVEREUX. 317 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. Wright (54 N. Y., 437), that a note made before marriage, in con- sideration thereof, was valid after marriage. The present contract does not purport to concern the separate property of the wife. As an agreement to release dower it is invalid. (Townsend v. Townsend, 2 Sand. Sup. Ct., 711; Winans v. Peebles, 32 N". Y., 423.) It is not even sealed or acknowledged. The consent that the defendant should have the custody of the child is no consideration, and to enforce a promise by a husband ":> pay money to his wife, in consideration of the condonation ol . dultery, would, I think, be a violation of rules of law, and princi- ples of public policy. (Freethy v. Freethy, 42 Barb., 641 ; Gould v. Gould, 29 How., 441 ; Longendyke v. Longendyke, 44 Barb., 366.) The plaintiff insists that this is not an agreement for a separa- tion. It is therefore unnecessary to consider whether it is invalid, when viewed in that light. Nor need we discuss the effect of the subsequent divorce. We think the agreement to pay the money was void, and the judgment and order should be reversed and a new trial granted, costs to abide the event. Present LEABNED, P. J., BOCKES and BOARDMAN, JJ. Judgment and order reversed, new trial granted, costs to abide event. VILLAGE OF DEPOSIT, PLAINTIFF, v. ALVIN DEVEREUX, AS SUPERVISOR OF THE TOWN OF SANFORD, BROOME COUNTY, DEFENDANT. Legislative actt special and general construction of Chap. 444 of 1874 vittagt of Deposit chap. 830 of 1873. That provision of the charter of the village of Deposit which provides for the payment of all sums received for licenses into the treasury of the village, is not repealed by chapter 444 of 1874, creating boards of excise for the several counties of the State. CONTROVERSY submitted without action, under section 372 of the Code. At the annual town meeting of the town of Sanford in 1875, 318 VILLAGE OF DEPOSIT w. DEVEHEUX. THIRD DEPARTMENT, SEPTEMBEB TERM, 1876. three commissioners of excise were elected. They granted certain licenses to persons within that part of the village of Deposit which lies within the town of Sanford, and received therefor $340. Thia money they paid to the defendant, the supervisor of that town, on the first day of March, 1876. The plaintiff claimed this sum under a provision contained in its amended charter, chapter 320 of 1873, which provides that all sums received for licenses should be paid into the treasury of the village, and made a demand therefor of the defendant, who refused to pay it over, on the ground that the provision requiring him so to do was repealed by chapter 444 of 1874. It has not been disposed of by the town board of that town. Alex. Gumming and T. & A. More, for the plaintiff. J3. N. Loomis, for the defendant. LEARNED, P. J. : In the case of the Village of Deposit v. Vail (12 S. C. N. Y., 310), this court held that the provisions of the charter of this village (Sess. Laws, 1873, chap. 330) touching excise matters, were n-t repealed, by implication, under the act of 1873, chapter 820. The present question is, whether those provisions are repealed by chapter 444 of the Session Laws of 1874, so far as relates to the disposition of the excise moneys. The third section of this act is in these words : " Nothing in this act shall affect the provisions of any special act, so far as the same provides for any special disposition of excise moneys and tines.'' The village charter provides : " Sums received for licenses, and fines and penalties collected, shall be paid into the treasury for the use of the village." The village charter is a " special act." The clause cited, therefore, contains " a special disposition of the excise moneys and fines." The law of 1874 does not exempt all the pro- visions of any special act, but only those which provide for the disposition of the excise moneys and fines. As to the composition of the board of excise it may therefore lie that the provisions of the charter are superseded. Considering this express provision of the Laws of 1874, and the general principle that a special act is not to be repealed by the QUAIN v. RUSSELL. 319 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. implied force of general laws, I think that the plaintiffs are entitled to the money. This view is in harmony, also, with the case of Village of Gloversville v. Howell, decided by this court and reported 7 Hun, 345. Judgment must be entered for the plaintiff. Present LEARNED, P. J., BOOKES and BOAKDMAN, JJ. Judgment ordered for plaintiff. MARY QUAIN, APPELLANT, v. MOSES RUSSELL MORTIMER RUSSELL, RESPONDENTS. Oml damage act Chap. 646 of 1873 when came of action exists under. It is not essential to the existence of a cause of action, under chapter 64(> of 1873, against the vendor of liquors, that an action should also be maintainable against the intoxicated person; it is sufficient if the wife has been injured ia her means of support through the intoxication of the husband.* MOTION for new trial by plaintiff, after a dismissal of the coin plaint at the Circuit, upon the ground that it did not state facta sufficient to constitute a cause of action. The exceptions were ordered heard in the first instance at the General Term. This action was brought to recover damages, under and by virtue of the provisions of chapter 646 of the Laws of 1873, entitled " An act to suppress intemperance, pauperism and crime," com- monly known as the " civil damage act. " The complaint showed that the plaintiff was the wife of James Quain, and was his wife, and was living with him as his wife and depending on him for her support at the times of the injuries complained of. The defend- ant Moses Russell was a hotel-keeper, and rented and kept a building for the purpose of keeping a hotel and selling liquor therein. The defendant Mortimer Russell was the owner of such building, and rented the same to the defendant Moses Russell for the purpose of a hotel, and had knowledge of the sale of intoxi- cating liquors therein. The defendant Moses Russell sold and delivered intoxicating liquors to said James Quain, the plaintiff's * See ante, p. 151, note. [Rap. 320 QUAIN v. RUSSELL. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. said husband, in said building. The said James Quain drank the said liquors in said building, and became intoxicated, and spent hia money upon which the plaintiff relied for her support, and by reason of his intoxication the plaintiff was injured in her means of support. Burke & Kilburn, fo the plaintiff. Albert Hdbbs, for the defendants. BOABDMAN, J. : If the complaint were technically defective the more appropriate treatment would have been to have moved to make it more definite and certain, or to have allowed an amendment of course upon the trial. When the defendant answers, he impliedly admits the t-ufficiency of the complaint as to mere matters of form, and when the issues come down to trial before the jury, objections to the sufficiency in mere matters of form will be regarded with slight favor. But upon authority I think the complaint in the case was sufficient. (Peterson v. Knoble, 35 Wis., 80 ; Schneider v. Hosier, 21 Ohio, 98.) I suspect, however, that the complaint was dismissed upon the broad ground that no right of action can exist against the vendor of liquors except in cases where it would also lie against the intox- icated person. The learned judge was inevitably led to such deci- sion by the unfortunate manner in which Hayes v. Phelan, owing to an omission in the list of decisions sent to the reporter, was reported in 4 Hun, 733. As that report is corrected in 5 Hun, 335, it will be seen that no such principle was adopted by the court. Apart from such error, there appears to be no such doctrine sanc- tioned by authority. In Baker v. Pope (5 S. 0. R., 102), the con- trary view is taken, though it is obiter. In the leading case of Schneider v. Hosier (supra), it is distinctly held that the loss of means of support by the wife, through the intoxication of the husband, gives to the wife a cause of action against the vendor of the liquor. The exercise of legislative power in such respects ia very ably considered by DIXON, C. J., in State ex rel. HenshaU v. Luddington (33 Wis., 107). QUAIN v. RUSSELL. 321 THIRD DEPARTMENT, SEPTEMBER TERM, 187. VILLAGE OF FORT EDWARD. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. IN THE MATTER OP ISAAC B. CULVER AND SAMUEL A. HETFIELD, APPELLANTS, v. THE VILLAGE OF FORT EDWARD, RESPONDENT. Village of Fort Edward Town bonds majority of taxable inhabitants vote of what constitutes Chap. 953 of 18G7 chap. 317 of 1868. Chapter 953 of 1867 as amended by chapter 317 of 1868, authorizing the village of Fort Edward to issue bonds, requires that notice of the special election, provided for in said acts, should be published for at least two weeks previous to the time appointed for such election. No bonds can be issued under the provisions of said acts unless a majority of all the taxable inhabitants of the village shall vote so to do. The consent >f a majority of all those who attend the meeting is not sufficient. APPEAL from an order made at the Special Term, denying a motion for a peremptory mandamus commanding the respondent to issue its bonds for $20,000 in aid of the Grlens Falls Railroad Company, as authorized by chapter 953 of 1867, as amended by chapter 317 of 1868. Beach <& Brown, for the appellants. MiUiman dk Matthews, for the respondent. By the Court : The application for a mandamus was properly denied if the modes prescribed by the legislature, as conditions to the issue of the bonds by the village, were not complied with. The ends to be accom- plished being in derogation of the common law and of the rights of the citizens not consenting thereto, should be strictly construed. By the act of 1867, chapter 953, notice of the meeting of the taxable electors was required to be published "for at least two weeks previous to the time appointed for such election." Within the time required for action by this law nothing was done. By chapter 317 of the laws of 1868 the statute of 1867 was amended, extending the time within which action might be taken by the village of Fort Edward, " by publishing a notice of such meeting in all the newspapers published in said village." By the third section of the act "all the provisions of said act (of 1867) as to CULVER v. VILLAGE OF FORT EDWARD. 341 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. the qualifications of voters and the mode of voting and holding of the election not inconsistent with the foregoing provisions, and all the other provisions not inconsistent herewith, are hereby made applicable to the village of Fort Edward." We think this made it necessary to publish the notice in all the papers "for at least two weeks previous to the time appointed for such election," and that a publication eleven days previous would not be a compliance with the requirements of the law. This seems to us the natural and fair construction of the two acts in this respect. By section 1 of the act of 1868, it is provided that " the taxable inhabitants of said village may at such meeting by a majority vote decide to raise," etc. By section 2 this expression is used : " And in case a majority of the taxable inhabitants shall vote," etc. ; "the trustees shall be commissioners," etc. The trustees contend that this language requires a majority of all the taxable inhabitants and not merely a majority of such as choose to attend and vote at such meeting. It is conceded that a majority of all the taxable inhabitants did not vote to raise the money or issue the bonds. This view of the trustees seems to us to be correct. We do not think it was the intent of the legislature to allow this obligation to be created against the corporation by a minority of the taxable inhabitants. Such a purpose would be in hostility to all similar legislation touching the bonding of towns, cities and villages in aid of railroads, and if intended, would have been made clear by the use of language indicating such intent, as for example : a majority of all the taxable inhabitants voting at such meeting. The language used plainly imports a majority of all the inhabitants, whether voting or not voting. This construction is confirmed by a reference to chapter 32 of the Laws of 1868, relating to this same subject, whereby it was required that the majority of the taxable inhabitants required should represent a majority of the taxable property to be determined by the last assessment roll. This last requirement was struck out by the provisions of chapter 317 of that year, enacted a month later, but in other respects chapter 32 is followed by chapter 317. For these reasons we think the legislature intended to require, and by chapter 317 did require, a majority of all the taxable inhabitants of said municipality as a condition precedent to the 842 PALMER v. MINAR. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. right of the trustees to issue bonds or raise money in aid of this railroad. If these conclusions are correct it is unnecessary to consider the >ther points taken by counsel, and the order appealed from should be affirmed, with ten dollars costs and expenses of printing. Present LEARNED, P. J., BOABDMAN and BOOKES, JJ. Order affirmed, with ten dollars costs and expenses of printing. MARTIN W. PALMER, PLAINTIFF, v. SOHUBEL P. MINAR, DEFENDANT. Promissory note Patent right tale of, consideration for Statute of Pennsyl- vania Law of another State knowledge of existence of a question of fact not of law. Section 3 of the act of April 12, 1872, passed by the legislature of Pennsylvania, provides, that whenever a promissory note is given in consideration of the sale of a patent right, " the words ' given for a patent right ' shall be prominently and legibly written or printed on the face of such note, * * * and such note or instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder." Held, that the words, "such note or instrument," in the last clause of the sentence, mean a note or instrument having on its face the words " given for a patent right," and do not include one which, although given upon the sale of a patent right, does not bear those words. This action was brought against the maker of a promissory note, purchased by the plaintiff (who knew that the original consideration of the note was the sale of a patent right, but not the Pennsylvania law upon that subject), in this State, before maturity and in good faith. The defendant alleged that the note having been given in the State of Pennsylvania upon the sale of a patent right, and not having the words "given for a patent right " upon its face, was void under section 4 of the above act, which declares it to be a misdemeanor for any person knowing the consideration of a note to be the sale of a patent right, to "take, sell or transfer " the same unless it has the words " given for a patent right" upon its face. Held (1), that the act did not in terms forbid the making of such a note, but only its sale or transfer; (2), that the statute did not affect the validity of such a note when purchased in this State before maturity and in good faith; (8), that where a purchaser in this State did not know of the existence of the said statute, his right to recover upon the note was not affected by the fact that he knew that it was given upon the sale of a patent right. PALMER v. MINAR. 343 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. MOTION for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit ordered by the court. This is an action by the indorsee of a promissory note, made in Pennsylvania by the defendant. It is in the usual form, with the words " without defalcation " added. The answer sets up that the consideration of the note was the sale to the defendant of a certain patent right ; that by the laws of Pennsylvania all notes given for such a consideration are required to have upon them the words "given for a patent right;" that all such notes are, by said laws, subject in the hands of any purchaser to the same defenses as in the hands of the original owner ; that by said laws, it is a misde- meanor to take, sell, or transfer any such note not having said words thereon, knowing the consideration thereof; that therefore the transfer of the note alleged in the complaint was, and the plaintiff took the same, subject to the equities and defenses, in the hands of Phelps, the original holder. The answer further alleges agree- ments on the part of said Phelps, as a further consideration of the note, made at the execution and delivery thereof, and a breach of the same by Phelps and a loss thereby to the defendant, wherebj the consideration of the note failed ; and the answer says that the defendant will insist on these facts as a defense, and as a recoup ment or counter-claim. On the trial of the cause, the plaintiff proved the note and also a statute of Pennsylvania, February 12, 1797, in regard to notes con taining the words " without defalcation," and also a case decided in that State. (Lewis v. Reeder, 9 S. & R., 193.) The defendant gave in evidence another statute of that State, April 12, 1872, being that set up in the answer; and proved that the note was given in consideration of the sale of a patent right. Sections 3 and 4 of said act are as follows, viz. : " 3. Whenever any promissory note or other negotiable instru- ment shall be given, the consideration for which shall consist in whole or in part of the right to make, use or vend any patent invention or inventions claimed to be patented, the words ' given for a patent right/ shall be prominently and legibly written ot printed on the face of such note or instrument, above the signature thereto, and such a note or instrument in the hands of any pur 344 PALMER v. MINAR. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. chaser or holder shall be subject to the same defenses as in the hands of the original owner or holder. " 4. If any person shall take, sell or transfer any promissory note or other negotiable instrument not having the words ' given for a patent right,' written or printed legibly and prominently on the face of such note or instrument above the signature thereto, knowing the consideration of such note or instrument to consist in whole or in part of the right to make, use or vend any patent invention or inventions claimed to be patented, every such person or persons shall be deemed guilty of a misdemeanor and upon con- viction thereof, shall be fined in any sum not exceeding $500, or imprisoned in the county jail not exceeding sixty days, or both, in the discretion of the court." The defendant offered to show an agreement by Phelps, as a part of the consideration, to furnish models, etc., and a breach thereof. The conveyance of the patent, in consideration of which this note was given, was made to the defendant and to one Allend. The court excluded the evidence on the ground that the claim of recoup- ment was a joint claim of defendant and Allend. In rebuttal the plaintiff testified that he knew nothing of this law of Pennsylvania when he purchased the note. The plaintiff asked the court to direct a verdict for him. The court held that the note was void in its inception, and nonsuited the plaintiff without any motion by the defendant. H. Boardman Smith, for the plaintiff. Ignorance of the statute law of another State, is ignorance of fact. (8 Barb., 233 ; 40 id., 474, 475 ; 5 Seld., 53 ; 15 N. Y., 193 ; 1 Hall, 80.) Grant, for the argument, that this note was illegal, and that the taking and the making of it, were even felonious ; this is no defense against the note, in the hands of an innocent purchaser for value, before maturity, " unless the note is expressly declared void by statute." (Grimes v. Hillenbrand, 4 Hun, 354 ; Hill v. Northrup, 4 N. Y. S. C. [T. & 0.], 120; Vallett v. Parker, 6 Wend., 615 ; 2 R. S., 691, 6 ; Stoney v. Am. L. Ins. and T. Co., 11 Paige, 635 ; Rock- well v. Charles, 2 Hill, 499 ; Merchants' Bank _y. Spaulding, 5 Seld., 53 ; Oneida Bank v. Ontario Bank, 21 N. Y., 495, COM- STOOK, J. ; Sanford v. Wyckoff, 4 Hill, 442 ; City Bank of N. T PALMER y. MINAR. 345 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. v. Barnard, 1 Hall, 80-84 ; Bissell v. M. S. and N. 1. R. R. Cy., 22 N. Y., 273, COMSTOCK, J. ; Story's Promissory Notes, 192 ; Edwards on Bills [in. p.], 337.) And the law of commercial paper is held to be the same in the State of Pennsylvania. (Creed v. Stevens, 4: Wharton, 223 ; Unger v. Boas, 1 Harris, 601.) It is conceded law that a note may be enforced by an innocent holder, who purchases it for value before maturity, even of the one who has gotten it by highway robbery, and from the pocket of the maker, who had never issued it. (Hall v. Wilson, 16 Barb, 548 ; 2 Parsons' Notes and Bills, 267, 268 ; Story's Promissory Notes, 191, 192.) And the law is so held in Pennsylvania. (Kuhns v. Gettysburg Nat. Bank, 68 Penn. St., 445.) D. B. Hill, for the defendant. The note having been made, executed and delivered in the State of Pennsylvania, and by its terms payable there, it is governed by the laws of that State. (Curtis v. Leavitt, 15 N. Y., 227 and cases cited ; Story on Conflict of Laws [2d ed.], 361, etc. ; Bowen v. Newell, 13 N. Y., 290 ; Waldron v. Ritchings, 9 Abb. [N. S.], 360 ; Chapman v. Robert- son, 6 Paige, 627 ; 2 Kent's Comm., 457.) The fact that the note was subsequently purchased by the plaintiff in this State, does not change the rule. (Cloyes v. Hooker 6 N. Y. S. C. [T. & C.], 448 ; Jewell v. Wright, 30 N. Y., 259.) The note was void in its incep- tion. It was given in violation of a statute. It is settled law in this State, that a contract founded upon an unlawful act, whether it be malutn prohibitum, or malum in se, cannot be enforced, but is void. (Pennington v. Townsend, 7 Wend , 275 ; Hallett v. Novion, 14 Johns., 272 ; Barton v. Port Jackson and Union Falls Plank-road Co., 17 Barb., 397 ; Berran v. Tugnot, 5 Sandf., 153 ; Porter v. Havens, 37 Barb., 343 ; Griffith v. Wells, 3 Denio, 226 ; Fenlon v. Cunningham, 20 How., 154; Best v. Bauder, 43 id., 176 ; Hoyt v. Allen, 2 Hill, 322 ; Conderman v. Hicks, 3 Lans., 108.) It was not necessary, to prevent the plaintiff being consid- ared a bonafide holder, that he should know that the consideration was illegal. It is sufficient if he knew what the consideration was. Knowing the facts he was bound to know the law. (Shotwell v. Murray, 1 Johns. Oh., 512 ; Storrs v. Barker, 6 id., 166 ; Holman 7. Johnson, Cowp., 341 ; Story on Conflict of Laws [3d ed.], 274.) HUN VOL. VIII. 44 846 PALMER v. MINAR. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. LEARNED, P. J. : There was no evidence of an}' failure of consideration, for the defendant was not allowed to prove the facts which might have shown this. The nonsuit was simply on the ground that the note was void in its inception. Section 3 of the Pennsylvania statute enacts that whenever any promissory note shall be given, the consideration of which shall consist, etc., " the words ' given for a patent right ' shall be promi- nently and legibly written or printed on the face of such note or instrument above the signature thereto, and such note or instru- ment in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder." These words, " such note or instrument," in the place where they are last used, must mean a note or instrument bearing the words u given for a patent right." They do not include a note given for the consideration of a sale of a patent, which does not bear these words. On this ground the learned justice excluded, in the present case, the evidence of failure of consideration and the like. This must be the correct construction. For if notes, not bearing these words, were open to such defense in the hands of honajide holders, the requirement of the statute that these words should be written on the note would be needless. The fourth section of the same act declares that it is a misde- meanor punishable by fine and imprisonment, for any person knowing the consideration of such note or instrument to consist of such right to use a patent, to "take, sell or transfer" any note, etc., not having on it the words above mentioned. Nothing is said in this section of the making of such a note. The taking of this note by the plaintiff and the transfer to him do not appear to have taken place in Pennsylvania, and are there- fore not affected by this act. The only question is as to the effect on the plaintiff's rights of the taking this note in Pennsylvania by Phelps, in whose hands it had its inception. It is not necessary to dispute the proposition that in the hands of Phelps this note would have been void. (Swords v. Owen, 43 How., 176, and cases there cited ; and Conderman v. Hicks, 3 Lans., 108.) But all those cases were decided between the original PALMER v. MINAR. 347 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. parties, or between those who stood in no better position than the original parties. But in the hands of a bona fide holder, without notice, illegality of consideration is not necessarily a defense. (Grimes v. Hillen- brand, 11 S. 0. N. Y., 354 ; Hill v. Northrup, 4 N. T. S. 0. [T. & C.], 120 ; Vallett v. Parker, 6 Wend., 615 ; Sa/ord v. Wyckoff, 4 Hill, 442.) And this statute does not declare the note void, noi does it even declare the giving of the note to be a misdemeanor. The defendant, however, insists that these cases do not apply ; because he says that the plaintiff knew what the consideration was. Now, if the invalidity of the note depended on the laws of this State, then one who here took the note, knowing the facts which made the note illegal, would, of course, be chargeable with knowl- edge of the illegality. But, in the present case, the alleged inva- lidity depends on the statute of Pennsylvania. The existence of such statute is a matter of fact, not a matter of law, as to persons living, and entering into contracts, here. The plaintiff proved affirmatively that he did not know of this statute. The bona fides, then, in the purchase of the note is not taken away by his mere knowledge that the note was given for a patent right. And it must be further noticed that in this case there is not even any illegality of consideration. It is only the taking of the note which is to be in violation of a statute. And, in addition to the plaintiff's want of knowledge of the Pennsylvania statute, it does not appear that he knew the fact that the taking of the note by Phelps was within that State. Beyond the limits of that State such taking would not be a misdemeanor. There should be a new trial, costs to abide the event. Present LEARNED, P. J., BOABDMAN and BOOKES, JJ, New trial granted, costs to abide event. 848 PHILLIPS v. DUSENBERRY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. GEORGE PHILLIPS, APPELLANT, v. CHARLES E. DUSEN- BERRY AND JESSE B. ANTHONY, IMPLEADED, ETC., RESPONDENTS.* Infant judgment against effect of Guardian ad Utem neglect of, to pleaa infancy. A judgment rendered against an infant who is duly summoned and has a guardian ad Utem appointed, who accepts the trust, will bind and conclude him as if he were an adult The practice of giving minors six months after coming of age to show cause against decrees rendered against them during their minority, applied only to actions in equity, and not to actions at law for the recovery of money due on contract, and this rule is now abrogated by statute, providing for the appoint- ment of guardians ad Utem. APPEAL from a judgment in favor of the defendant entered upon a trial before the court at Special Term. The plaintiff, one of the firm of E. & G. Phillips, was, previous to July 30, 1874, sued by the defendants before a justice of the peace of Montgomery county. The summons was personally served, and upon his failure to appear, a guardian ad litem was appointed for him and judgment was after- ward entered against him. No appeal was taken from the judgment. This action was brought in equity to set it aside on the ground of the infancy of the plaintiff at the time of the rendering of the judgment against him. The guardian ad litem knew that the plaintiff was an infant, but did not interpose that defense. The case was affirmed at the General Term, upon the following opinion of BOCKES, J., delivered at the Special Term. BOCKES, J. : The judgment rendered by the justice of the peace against the plaintiff (then a minor) and his partner, Ervin Phillips, was neither void nor erroneous. The action was on contract. The amount claimed was within the jurisdiction of the court. The summons was duly and personally served on both defendants, and a guardian ad litem was appointed for the minor (the present plaintiff), and he nccepted the trust. Thus it appears that the justice had jurisdic- tion of the person and subject-matter of the action, and all the Decided May terra, 1876. PHILLIPS v. DUSENBERRY. 349 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. proceedings required by law were observed. Nor is the judgment attacked for fraud. It is not alleged that the judgment was fraudulently obtained. The right to have the judgment stayed or discharged as to the plaintiff, is put on the sole ground of his infancy at the time the debt was contracted, and when the judgment was rendered against him, with the additional facts, perhaps, that the debt was not for necessaries ; that he remained a minor after judgment was rendered until the time to appeal had elapsed, and that the judgment was rendered in Justice's Court, wherein he was remediless by any pro- ceeding which could be there taken. The plaintiff was summoned to answer before the justice where he could have interposed the defense of infancy. This he and his guardian ad litem omitted to do, and judgment went against him. Is he concluded by such judgment ? It is undeniable *hat the defense of infancy is personal to the infant. He may or may not insist upon it to defeat his contracts. A party cannot plead the infancy of his co-defendant. With these preliminary remarks it is proposed to examine a few of the many cases bearing more or less directly upon the subject under examination. The defense of infancy, like other matters of defense, should be put forward on the first opportunity. In Graham, v. Pinckney (7 Robt., 147), the defendant, who had appeared by guardian, was in default in interposing an answer. The court refused to let him in on the defense of infancy, and denied a motion to set aside the judgment entered against him by default for want of an answer. I do not approve of this decision, as I think the motion, having been in the action against the infant and the default excused, should have been granted on terms covering the expense of the default and motion. But the case is cited to show that the defense of infancy should be interposed on the first opportunity. In Blake v. Douglass (27 Ind., 416), it was held that infancy, being a personal privilege, might be waived, and that if not pleaded, a judgment against an infant would be binding upon him. The action was brought to enforce a judgment. The defendant set up, by way of defense, that at the time of the rendition of the judgment, he was a minor and did not appear in the action, either 350 PHILLIPS v. DUSENBERRY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. in person or by attorney, and that the judgment was taken against him by default. The court overruled this alleged defense, hold- ing that the facts averred only showed error in the original judg- ment, which should have been corrected in that suit. In the opinion of the court, it is stated " that the infancy of the appellant might have been a good defense, if he had appeared and set it up in the original suit ; that it was a personal privilege, and having failed to avail himself of it at the proper time, by suffering judg- ment to be taken against him by default, the judgment is binding on him. The action in Wrisleys v. Kenyan (28 Yennont, 5) was audita querela to set aside a judgment rendered before a justice of the peace. The ground of proceeding was that the party was a minor, and that no guardian ad litem was appointed for him before the justice. It turned out on the trial, that the minor was sued before the justice jointly with his father in an action of trespass ; that his father, his natural guardian, appeared and took upon himself the defense of the suit, for the infant as well as for himself. The judgment was held to be conclusive upon the infant. In this case, the action before the justice was trespass, and infancy was therefore no defense; but the case is an authority on the ques- tion of the conclusiveness of a judgment against an infant who is summoned and defends by guardian. To the same effect is the decision in Robinson v. Swift (3 Ver inont, 283). Mr. Wait, in his Law and Practice (vol. 2, p. 279), says in effect, that a judgment against an infant, who appears and defends by guardian, will be deemed as effectual as if rendered against an adult. In the case of an infant his proper defense devolves upon his guardian ad litem, who, by accepting the trust, becomes obligated to its due performance. So it was held in Knickerbacker v. De Freest (2 Paige, 304), " that if a guardian neglect his duty in consequence of which the rights of the infant are not properly attended to, or are sacrificed, he may be punished for his neglect, and he will also, in such case, be liable to the infant for all damages he may sustain." These authorities seem to settle the point, that a judgment rendered against n infant who is duly summoned and has a guardian ad litem PHILLIPS v. DUSENBERRY. 851 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. appointed, who accepts the trust, will bind and conclude him the same as if he were an adult. The practice which gave minors six months after coming of age within which to show cause against decrees rendered against them during their minority, had application to actions in equity (Tyler on Inf. and Cov., 148, and cases there cited) ; never, as I am aware, to actions at law for the recovery of money on contract. And there existed at one time the right of the parol to demur, the effect of which was to stay proceedings in the action against the infant until he should arrive of full age. The form of this plea is given in Flasket v. Beeby (4 East, 485). This subject, the right of the parol to demur and the giving a day to the infant after he shall arrive of age to show cause, is con- sidered in Harris v. Youman (1 Hoff. Oh., 178). But it is sufficient here to say that neither of these proceedings has any application to the case in hand, as will be seen on reference to section 148, Tyler on Infancy, above cited, with the authorities there alluded to. The statute providing for the appointment of guardians ad litem for infant defendants seems to have superseded, to a very great extent, if not entirely, such practice. (Fenier v. Wyse, 3 Blaud's Oh. [Maryland], p. 51.) Nor am I aware of any case in this State where a judgment for the recovery of money due on contract has been set aside, or stayed by a new suit, after the infant defendant had arrived of full age, on the ground that it was rendered against him while yet a minor. Relief will be granted to infants and adults alike for fraud in the obtaining of judgments. (State of Michigan v. Phce- nix jBank, 33 N. Y., 9, 25 et seq. and cases there cited.) But as Judge GROVEK remarks, in New York and Harlem Railroad Company v. Haws (56 N. Y., 175-181): "Equity does not interfere to restrain the collection of a judgment upon the ground that it was erroneously rendered, but only upon the ground that enforcing it would be con- trary to equity and good conscience, as shown by facts of which the party could not avail himself as a defense, or where he was pre- vented from so doing, without any fault of his own, by the fraud of the other party." (Truly v. Wanzer, 5 How. [U. S.], 141.) A judgment cannot be impeached for error by collateral action. On this point the authorities are numerous and uniform. I am cited to several cases holding that an infant is not bound by the answer or the admissions of his guardian. The following 352 PHILLIPS y. DUSENBERKY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. are a few of them : Wright v. Miller (1 Sandf. Ch., 103) ; Stephens v. Van Buren (1 Paige, 479) ; James v. James (4 id., 115) ; Howell v. Mills (53 N. Y., 322). The points decided in these cases and in others where similar language is employed, is, that the court will not make a decree against an infant on the answer or admission of his guardian ad litem ; but will require all the material facts necessary thereto, to be proved. As was said in one of the cases cited, where there are infant defendants, and it is necessary, in order to entitle the complainant to the relief he prays, that certain facts should be before the court such facts, although they might be the subject of admissions on the part of the adults, must be proved against infants. It would be improper, perhaps erroneous, to receive admissions of such facts from the guardian ad litem against his ward. But these cases do not hold, nor am I aware of any which do hold, that in case the court should improperly and erroneously act upon the answer or admission of the guardian, without other proof of the facts, the judgment based thereon could be impugned for each cause by the infant in a new suit brought by him for that pur- pose. The judgment in such case would be conclusive on all the parties to it, until reversed on writ of error or appeal. In case the judgment should be assailed fur fraud, and it should be alleged that it was fraudulently obtained through connivance and complicity of the guardian who should reap advantage therefrom, then the fact that he procured the judgment or decree on his own admission, without other proof of the material facts, would have significance as bearing on his alleged fraudulent conduct. But, as has been above observed, this action is not brought to vacate and set aside the judgment rendered by the justice, on the ground that it was fraudulently obtained. The cases cited to the effect that the answer and admissions of a guardian ad litem will not be held binding on the infant by the court, as a basis of a judgment or decree, have no application to the case in hand. The question in this case rests on the sole ground that the plain- tiff in this suit was an infant when the judgment was rendered against him and his co-defendant in the Justice's Court, and that his guardian ad litem neglected to interpose for him the defense oi infancy. PHILLIPS v. DUSENBERRY. 353 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. As above stated, fraud in the obtaining of the judgment is not alleged ; hence all consideration bearing on such a case may be laid aside or passed over. Nor is it a case for a bill of review (2 Barb. Ch. Prac., 90, 91) ; nor can the action be sustained in the nature of an audita querela. This common-law proceeding may now be resorted to where something has occurred since the rendition of the judgment, making its enforcement unjust or inequitable, or when some fact exists which could not have been pleaded in the former suit. (Mallory v. Norton, 21 Barb., 424-435 ; 3 Blacks. Com., 405.) This case is not brought upon either of these grounds. There is no pretense that any thing has occurred since the rendition of the judgment by the justice making its enforcement inequitable, nor that any fact now exists which could not have been pleaded before him. The defense of infancy could have been interposed in the former suit, and that was the proper place to set it up. I am referred to a remark of the chancellor in Mason v. Denison (15 Wend., 64, 68), to the effect that an infant may have relief by audita querela against a judgment rendered against him on setting up his infancy. The remark is as follows : " He may also obtain relief, so far as his interest in the property is concerned, by the common-law writ of audita querela" The observation was made as to an infant defendant who had not been summoned, but against whom a recovery had been had as a joint debtor, his co defendant having been served with process. On this judgment the joint property of the defendants was liable to seizure and sale, and the question under consideration by the chan- cellor was, how the infant in such case could avail himself of his infancy to protect his individual interest in the joint property. It will be observed that the infant was not summoned ; consequently had not been called upon in court to answer. On studying the case, it will be seen that the chancellor put the right to an audita querela on such fact. Not having been brought in as a defendant in the former suit, he had had no opportunity to plead his infancy ; hence a fact constituting a defense, his infancy, could not have been pleaded in that suit, and consequently, as the chancellor remarked, he could have relief on audita querela. Not having been summoned, he had had no opportunity to plead his infancy, and it was not competent for his co-defendant to set it up. ( Van Bramet HUN VOL. VIII. 45 854 PHILLIPS v. DUSENBERRY. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. v. Cooper, 2 Johns., 279 ; Hartness v. Thompson, 5 id., 160 ; Slooum v. Hooker, 13 Barb., 536.) It may be well, perhaps, to follow the chancellor a little in his reasoning, as It will be seen at once that he put stress on the fact that the infant had not been summoned ; and he concluded (doubtless correctly), that in such case the infant might have an audita querela to obtain relief against a judgment rendered against him ; to adopt his own language, " upon the ground that he had no day in the court of law, and would not be admitted to make his defense there." In citing a case where relief had been obtained on audita querela,, the chancellor said, that he presumed the judgment against the infant as to which relief was sought, must have been rendered against him "without actual notice and appearance by guardian" justly and fairly implying that if the infant had been served with process and had appeared by guardian, he would be deemed to have had his day in the court of law, and therefore could not thereafter be heard on audita querela. Now, in the case at bar, the infant was summoned, and appeared in the court of law by guardian. He was called upon according to the forms of law to answer, and put forward his defense to the plaintiffs claim. The evident purpose of the statute requiring the appointment of guardians ad litem for infant defendants, was to put them to their defense immediately, whatever the defense might be, and to conclude them when represented by guardian in regard to their defenses. What is gained by the action if the judgment rendered therein may be impeached by the infant at will by a new suit for that purpose ? The object of appointing a guardian ad litem for an infant, is to place him on equal footing with adults as regards any matters of defense which he may have. It is the duty of the guardian to interpose for him all his defenses, and having accepted the trust, he becomes liable for all damages occasioned by his neglect. It was said by the chancellor, in Knickerbocker v. De Freest (2 Paige, 304), above cited, that it was his duty in every case to ascertain from the infant and his friends, or from other pro- per sources of information, what are the legal and equitable rights of his ward ; and that if a special answer be necessary or advisable for the purpose of bringing the rights of the infant properly before the court, it is his duty to put in such an answer. What need of PHILLIPS v. DUSENBERRY. 355 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. all this care and attention if the judgment to be rendered in the action is to have force and effect only at the option of the infant, thereafter to be exercised by him? The law requiring the appoint ment of guardians ad litem for infant defendants was intended, in my judgment, to place them before the court, in the same situation as to their defenses as if they were adults ; and it follows that they must put forward their defenses, being called upon, and having the opportunity to do so ; and that the judgment regularly rendered against them concludes them the same as it would persons of full age. If I am right in this conclusion, the complaint in this case must be dismissed. The two other cases (Phillips v. Hier et al. and Phillips Y. Hicks et al.), submitted at the same time with this one, above con- sidered, resting on the same state of facts, substantially, must have the same direction. J. E. Dewey, for the appellant. Henry A. Merritt, for the respondents. Present LBAENED, P. J., and BOABDMAN, J. BOGKES, J., not acting. Judgment affirmed with costs. MEMORANDA OF OASES 3STOT REPORTED IN FULL. ANNIE E. EVERETT, RESPONDENT, v. FRANK L. LOCK- WOOD, APPELLANT. Payment of instalments under contract in action of ejectment brought for nonpay- ment burden of proof as to payments. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was ejectment, brought by the plaintiff as heir at law of Richard Everett, deceased, to recover the possession of certain premises which the defendant occupied under a written contract of purchase from the deceased. The complaint set up the contract, possession under it and a failure to pay installments. The answer admitted the contract and possession, averred payment of an installment, and full payment of all that was due on the contract at the time of commencing the action. The principal question pre- sented by the appeal was, whether it was incumbent upon the plaintiff to prove that the payments had not been made, or upon the defendant to show that they had. The court at General Term say : " Under these pleadings, the averment of payment was an affirmative allegation on the part of the defendant ; and, like other averments of payment, it should be proved by the party who alleges it. The only issue on the plead- ings appears to be the issue of payment on the contract. And on pleadings thus framed we think that it was for the defendant to prove the payment which he had averred." Youmans & Niles, for the appellant. GHXbert <& Maynard, for the respondent. Opinion by LEARNED, P. J. PEOPLE EX BEL. STANTON v. HORTON. 357 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. Present LEARNED, P. J., BOCKES and BOARDMAN, JJ. Judgment modified by reducing damages to six cents, and ai modified affirmed, without costs of appeal. THE PEOPLE EX EEL. ASA STANTON, APPELLANT, v. LUCIEN HORTON, AND OTHERS, REFEREES, ETC., RESPONDENTS. Garden, meaning of Highway land taken for 1 R. 8., 574, 57. APPEAL from an order or judgment of the Special Term, confirm- ing the proceedings of the defendants as referees, in affirming an order of commissioners of highways in the alteration of a highway, whereby a portion of relator's land was taken, which he claimed to be a garden. The court at General Term say : " The only objection urged is, that a portion of relator's garden was taken in the process of widen- ing and straightening the highway. The statute forbids, that where the part taken has been used as a garden for the previous four years. (1 R. S., 574, 57.) It is not claimed that the relator consented. Upon this point a number of witnesses were examined upon each aide. The commissioners, jury and referee all decided from such evidence, aided by an inspection of the premises, that the part taken never had been cultivated as a garden for the period required. This being a decision upon a conflict of evidence, must be conclu- sive upon the court. (Baldwin v. City of Buffalo, 35 N. Y., 375 ; 1 R. S., 519, 89.) But upon the evidence taken, it is quite evident that the strip of land taken had not been used as a garden. It had been planted with potatoes and corn, and constituted part of an inclosure in which was a garden, and in that sense only was a part of a garden. Such is the weight of the evidence given on each side. This does not make it a garden within the meaning of the statute. That, in the language of Judge EABL, 'is a piece of ground appropriated to the cultivation of herbs or plants, fruits and flowers. * * * It is not sufficient that the land is inclosed with a garden, but it must be a part of a cultivated garden.' (People ew rel. Cooke v. Comma, of Highways, 57 N. Y., 550.) The same idea is conveyed 858 FLEMING v. D. & H. CANAL CO. THIBD DEPARTMENT, SEPTEMBER TERM, 1876. by BBONSON, J., in People v. Judges of Dutchess (23 Wend., 361). 4 It does not follow that the whole field is an orchard because there are fruit trees in some part of it. ? The conclusion that this was a garden should be irresistible tc induce the court to reverse the decisions of the commissioners and referees who have had the advantage of personal inspection of the premises taken, and have seen and heard the witnesses who have testified upon the subject. The evidence falls far short of any such urgent force, and as I have said impresses me in quite the contrary direction. The order or judgment appealed from should therefore be affirmed, with costs against the relator. (People v. fuller, 40 How., 37.)" 11. JJostwick, for the appellant. D. T. JSdaton, for the respondents. Opinion by BOABDMAN, J. Present LEABNED, P. J., BOABDMAN and BOOKES, JJ. Order and judgment affirmed, with costs against the relator. OLIVER FLEMING AND HENRY C. GREGORY, RESPOND- ENTS, . THE PRESIDENT, ETC., OF THE DELAWARE AND HUDSON CANAL COMPANY, APPELLANTS. Evidence Damages amount of, to be determined by the court witness should not be asked to state it. APPEAL from a judgment in favor of the plaintiff, entered on the direction of a referee. The complaint charges that, on or about the 24th day of April, 1873, the plaintiffs delivered to the company, at Unadilla, N. Y., a car load of cattle, on an agreement with the company to carry them over the railroad run under its management, to the city ot Albany, promising to have the cattle at the latter place the fol- lowing morning, in time for transhipment to Newburgh; that the company omitted and neglected so to convey the cattle, by reason whereof they were injured, and the plaintiffs were put tc FLEMING y. D. & H. CANAL CO. 359 THIRD DEPARTMENT, SEPTEMBER TERM, 1876. increased expense. The answer was a general denial, and, further, that the cattle were conveyed under a special agreement, exempting the company from the injuries and damage complained of. On the trial evidence was given, on the part of the plaintiffs, tending to prove the alleged contract, also the delay, and consequent damages. Answering evidence was given on the part of the company. Upon the trial, the following questions were put on the part of tthe plaintiffs, to wit : " As it was, what expenses were you neces- sarily put to in feeding and taking care of the cattle at Albany, until the next Newburgh boat went out 3 How much less were these cattle worth on their arrival at Albany, by reason of this unusual shrinkage ?" The questions were both allowed against the defend- ants' objection, and exceptions to the rulings were duly entered. The answer to the first was, " twenty dollars twenty-five cents, or twenty dollars seventy-five cents ; " and to the second, " from three dollars to five dollars per head on the cows." The referee found for the plaintiffs, awarding $108.25 damages, allowing, probably, the medium between three dollars and five dollars, to wit, four dollars per head on the twenty-two cattle, for the " unusual shrinkage," and twenty dollars twenty-five cents for the expenses "necessarily put to in feeding and taking care of the cattle at Albany," until the Newburgh boat went out. The court at General Term say : " In regard to one question, the witness had been interrogated as to the time and circumstances of the delay at Albany, and as to the fact of feeding and caring for the cattle there. This was all well and proper. Then came the question : 'As if was, what expenses were you necessarily put to in the feeding and taking care of the cattle at Albany, until the next Newburgh boat went out ? ' The answer was : ' Twenty dollars and twenty -five cents, or twenty dollars and seventy-five cents.' Thus the entire Bubject of that damage was left to the answer of the witness. His evidence declared the amount of damage. He was allowed to state the facts of the case, and to determine the question of neces- tary expenses, and then taking the case ' as it was,' to instruct the referee as to the amount of damages he should allow ; and judging from fair inference, the referee accepted the witness' conclusion. The amount of damage, after the facts of the case were fully- detailed, rested with the referee. His judgment on that question 860 FLEMING v. D. & H. CANAL CO. THIRD DEPARTMENT, SEPTEMBER TERM, 1876. was invoked, and it was improper to yield it to the opinion of the witness. Tn effect, the witness was allowed to state how much the plaintitfs ought to recover in that case for feeding and taking care of the cattle at Albany. Witnesses cannot be allowed to give their opinion upon questions which belong exclusively, like a question of damages, to a jury or referee. This rule as to the admission of evidence is too familiar to admit of the citation of authorities. The other question, admitted against objection, was also of doubtful propriety, to say the least of it. It was as follows : ' How much less were these cattle worth, on their arrival at Albany, by reason of this unusual shrinkage? ' The answer was : ' From three dol- lars to five dollars per head for the cows.' Was not this simply giving the damages ; simply aggregating the amount ? It was for the referee to find from the evidence whether or not there was an unusual shrinkage, the cause of it, and the amount of damage in case he should find the party liable for the damage. Now, was not the witness permitted to cover all these subjects by his answer? I am inclined to the opinion that the ruling of the referee as regards this question to the witness was erroneous ; but not so palpably erroneous as to be entirely free from doubt, and did the decision of the case turn on this point solely, I should hesitate somewhat before consenting to a reversal of the judgment. Still, I am under the impression that it was improperly allowed. " Bundy & Sara/mling^ for the appellants. Belknap <& Edson, for the respondent. Opinion by BOCKES, J. ; BOARDMAN, J., concurred. LEARNED, P. J., not voting. Judgment reversed, new trial ordered ; reference discharged, costs to abide the event. TOWN OF ESSEX t>. N. V. & CANADA R. K. CO. 361 THIKD DEPABTMKNT, SEPTEMBBK TERM, 1876. THE TOWN OF ESSEX, APPELLANT, v. THE NEW YORK AND CANADA RAILROAD COMPANY AND OTHEKS, RESPONDENTS. Irrelevant matter striking out of discretionary when improper. APPEAL from an order of the Special Term, striking out portioni of the complaint as irrelevant and redundant. The court at General Term say : " Irrelevant and redundant allega- tions hurt no one. It is not, therefore, an absolute right to have them stricken out. The court should exercise a discretion. It might reasonably strike out matter which is plainly and on the first glance seen to be impertinent. But it should use this power with reluct- ance and caution. There is little benefit in motions of this kind, and there may be much harm. Immaterial evidence can always be rejected at the trial. It is best that the plaintiff have great latitude in setting forth in his complaint whatever, in good faith, he thinks may be important ; especially in cases like this, where the relief demanded is of an equitable character. W do not decide as to the materiality of the allegations stricken out. But for the reasons above expressed, we think that the por- tion of the order appealed from should be reversed, with ten dol- lars costs and printing." Samud Hand, for the appellant. Waldo, Tobey & Qrover, for the respondents. Opinion Per Curiam. Present LEARNED, P. J., BOOKES and BOABDMAN, JJ. Order reversed, with ten dollars costs and printing. DKTKKMLNKD IN THB FIRST DEPARTMENT AT GENERAL TERM, , 1876. EDWARD LANGE, RESPONDENT, v. CHARLES L. BENEDICT, APPELLANT. Unlawful imprisonment action for, against judge when not maintainable, although sentence is unauthorized. The plaintiff was convicted of a crime punishable by fine OR imprisonment. The United States District Court, over which the defendant presided as judge, imposed both. The plaintiff paid the fine and applied to be released, because he had suffered one of the alternative punishments provided for the offense. The application was denied and the court directed the sentence pronounced to be vacated, and then sentenced the plaintiff to one year's imprisonment under his conviction (authority to so change the punishment having been previously held by the Supreme Court of the United States to exist). On return to a writ of habeas corpus and a writ of certiorari issued by the United States Supreme Court, the plaintiff was discharged from custody, the court holding that he could not lawfully be sentenced to imprisonment after what had transpired in the case. The plaintiff thereupon brought this action for unlawful imprison- ment. Held, that it could not be maintained. Where, in the course of a judicial proceeding, a judge is required to pass upon a question, the law as to which is in such a condition as to afford ostensible support to each side of the proposition presented, so that different minds might weJ, and naturally would, be lead to different conclusions as to the proper course to be pursued in disposing of the case, a judge cannot be held person- ally liable for a decision made by him in good faith, and without malice, even though an appellate court should subsequently reverse such decision, aud hold that the judge had no power to render or enforce the same. Especially is the judge exempt from personal liability, when his action is founded LANGE v. BENEDICT. 363 FIRST DEPARTMENT, OCTOBER TERM, 1876. upon a decision of an appellate tribunal to which he is bound to conform, affirming the existence of the authority exercised by him in passing the sen- tence in question. APPEAL from an order overruling a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. B. F. Tracy, for the appellant. Wm. Henry Amoux, for the respondent. DANIELS, J. : The action has been brought to recover for the unlawful imprison- ment of the plaintiff by the defendant, who is the United States district judge for the eastern district of New York. It appears by the complaint and the copies of the papers annexed to it, show- ing the proceedings had, that the plaintiff was indicted, tried and convicted at a term of the Circuit Court of the United States for the southern district of New York, held by the defendant, of the crime of larceny, committed by stealing mail bags of the value of less than twenty dollars. By the act of Congress defining the offeruse and its punishment, that conviction rendered the plaintiff liable to be sentenced to pay a fine not exceeding $200, or to be imprisoned not exceeding one year. In, finally disposing of the case the defend- ant imposed both these punishments upon him. The plaintiff paid the fine, and applied to be released from custody by means of the writ of habeas corpus because he had suffered one of the alternative punishments provided for the offense. That was denied, and the court, by order entered, directed the sentence which had been pro- nounced to be vacated, and then sentenced the plaintiff to one year's imprisonment upon his conviction. He had then been in custody five days, and afterward applied to the Circuit Court of the United States, when the circuit judge, LEWIS B. WOODRUFF, the district judge of the southern district, SAMUEL BLATOHFOBD, and the defend- ant, were upon the bench presiding, for a writ of habeas corpus, to discharge him from further imprisonment because of its illegality. The application was heard, arid after being considered, was denied. He then applied for another writ of habeas corpus which, together 864 LANGE v. BENEDICT. FIRST DEPARTMENT, OCTOBER TERM, 1876. with u writ of certiorari, was issued by the Supreme Court of the United States. And upon the hearing had on the return made to both writs, the plaintiff was discharged from custody, the court holding that he could not lawfully be again sentenced to imprison- ment after what had transpired in the case. (Ex parte Lanye, 18 Wall., 163.) After that, this action was brought against the defendant for false imprisonment ; and a very able argument has been made by the learned counsel for the plaintiff in favor of maintaining it. But the report of the case itself, as it was consid- ered and decided by the Supreme Court of the United States, would seem to be sufficient to negative the assertion that such an action can be maintained upon the facts in the case. The sentence was changed by the same court, at the same term, during which the first sentence was pronounced. And a learned and extended examination by the court of last resort was found necessary, for the purpose of maintaining the position that the change was improp- erly and unlawfully made. The opinion in which that view was sustained (and it was done by one of the ablest judges of the pres- ent time), proved unsatisfactory and unconvincing to two members of that learned court ; and its conclusions were cornbatted by one of those two in an opinion rarely, if ever, excelled in the thoroughness of its investigations and researches, or the vigorous logic used in tracing and exhibiting their results. Under these circumstances, it cannot, with the least propriety, be held that the point presented to and decided by the defendant was not a doubtful one, or that its deci- sion and determination did not require the exercise of judicial func- tions. The examination and discussion which it received when it was finally decided most conclusively establishes the contrary ; and that, of itself, should be deemed to be sufficient to shield the defendant from personal liability. The law was, to say the least, in such a condi- tion as to afford ostensible support to each side of the proposition presented, and to render the development of a satisfactory and con- sistent conclusion intricate and difficult. Different minds could very well, and would very naturally, be led to different results con cerning the propriety of the course pursued in the disposition of the case by the Circuit Court. Two other judges of great learning and experience in that court held, with the defendant, that the proceed- ings were not invalid, and the plausibility of their decision wa LANGE v. BENEDICT. 365 FIRST DEPARTMENT, OCTOBER TERM, 1876. finally corroborated by the opinion of Mr. Justice CLIFFORD. If, with that weight of authority in support of the action that was taken, a judge could be held personally liable for its consequences, judicial protection would be at once destroyed, and the utility of the courts in doubtful cases practically subverted. For the result would finally be that all unauthorized determinations arising out of misap- prehensions of the law, or miscalculations of the true weight oi authority affecting the person, or the property of the defeated party, would furnish a cause of action for trespass or false imprisonment ; and no court could possibly be protected against such liability, for even those of last resort not unfrequently find it necessary to re-exam- ine, distinguish, and finally overrule their own decisions. And it cer- tainly is no discredit to the learned tribunal, by whose mandate the plaintiff was set at liberty, to say that it has not always found itself at liberty to disregard that alternative. The law is the most compli- cated of all practical sciences, and it cannot fail to become more so, as the intricacies of business and enterprise increase and advance. Differences of opinion upon legal subjects cannot be avoided even by the most patient attention and laborious investigation ; and when they do arise, erroneous conclusions are required to be excused as the natural consequences of human fallibility. When a party has been brought before a court of justice in a legal manner, and circum- stances are presented requiring a decision affecting him to be made, the tribunal making it cannot be deprived of protection, because it may afterwards, upon further and fuller investigation, turn out to have been erroneous. That was the case of the plaintiff. He had been convicted of a crime punishable by fine or imprisonment. The court inadvertently imposed both. When its consideration was directed to the misapprehension under which the sentence had been pro- nounced, an effort was made to correct it in such a manner as to comport with what was considered to be just in the case. And that correction, it was held, could be and was designed to be made. The emergency which had arisen required a decision concluding the power of the court. The judge could neither avoid making it nor escape from it. His duty required him to act, and he had the power to decide, and did so accordingly, to the best of his judgment. And for that he cannot, upon any sound principle of accountability, be held to be personally liable. He had for that purpose, jurisdiction of the per- 366 LANGE v. BENEDICT. FIRST DEPARTMENT, OCTOBER TERM, 1876. on and the subject-matter. Both were before him, and his decision was necessary. He could not avoid making it if he would. And as it turned out he decided erroneously. The rule by which judicial officers have been exonerated from liability for the consequences of their deci- sions, has gone much farther than is required under the circumstances for the protection of the defendant. In Yates v. Lansing (5 Johns., 282), the assertion was approvingly mentioned, " that no authority, or semblance of an authority, had been urged for an action against a judge of record, for doing any thing as judge ; that this was never before imagined, and no action would lie against a judge for a wrongful commitment, any more than for an erroneous judgment." (Id., 294.) And that principle was affirmed afterwards in the same case by the Court of Errors. (9 id., 396.) And to the same effect are Jen- kins v. Waldron (11 id., 114); Vanderheyden v. Young (id., 150); Wilson v. Mayor of New York (1 Denio, 595) ; Weaver v. Deven- dorf(3id., 117); Bradley v. Fisher (13 Wallace, 335). In the ease of The Rochester White Lead Co. v. City of Rochester (3 Cora., 464), it was said that, " whenever dirties of a judicial nature are imposed upon a public officer, the due execution of which depend upon his own judgment, he is exempt from all responsi- bility by action for the motives which influence him, and the man- ner in which such duties are performed." (Id., 466.) To secure this immunity, it is sufficient that a case requiring judicial action is presented to the judge. (Harnan v. Brotherson, 1 Denio, 537 ; Landt v. Hilts, 19 Barb., 283.) But the defendant's right to exemp- tion from personal liability in this case, rests upon still more cogent circumstances than those already relied upon. For the decisions of the United States Supreme Court, to which he was bound to sub- ordinate his action, had previously affirmed the existence of the authority which he exercised in changing the punishment. (Cheang-Kee v. U. &, 3 Wallace, 321 ; Basset v. U. , 9 id., 38.) In the last case the person proceeded against had pleaded guilty to an indictment, and had been sentenced to imprisonment and was actually sent to prison in pursuance of the sentence. A few days after that he was brought again into court by means of a writ of habeas corpus, and on the district attorney's motion the judgment was set aside, and the prisoner had leave to withdraw his former plea of guilty. This was all done during the same term, as it wa LANGE v. BENEDICT. 367 FIRST DEPARTMENT, OCTOBER TERM, 1876. in the case of the plaintiff, and the court unanimously held it to be proper. It was not held so because the proceeding was favorable to the defendant, but for the sole reason that during the same term the court had full power to control and change its judgments. And that subject was very fully discussed, and the authorities cited upon which the principle rested, by Mr. Justice CLIFFORD in his opinion in Ex Parte Lange (18 Wallace, 191-195). And a decision of the same nature was made after the execution of the sentence had commenced, by reducing the term for which transportation had been provided, in the case of Rex v. Price (6 East, 323, 327). The Circuit Court had no power, even if it had the disposition, to gainsay or deny the accuracy of the legal principle sanctioned by the case of Bassett v. U. S. (supra). It not only had the power, but it was bound to conform its action to the principle maintained by that authority. That was as obligatory upon the defendant at the time as positive legislation would have been. And he appears to have acted under its sanction. At that time his action was strictly lawful, and it cannot be denied that the authority of that case then afforded him complete protection for the change made in the sentence, and it would prob- ably be conceded to continue to do so, had it not been since impaired as authority by the final decision made for the plaintiff's liberation. Under the doctrine of that case the defendant was vested with clear jurisdiction over the subject-matter brought before him, and it at the same time indicated the manner in which it should be exercised by him. That it was, as the learned justice stated in his opinion in the plaintiff's favor, it had been decided " in general terms, without much consideration" (18 Wallace, 167), could not change its effect as authority at the time when it was followed by the Circuit Court. The defendant presiding there could not then, with the least propriety, have assigned that as a reason for disregarding it as authority. The decision was then in full force as it had been made. It was promulgated by the court in its published reports as a proper exposition of the law, and it would be exceedingly unjust under such circumstances, to render the defendant's protection dependent upon the views afterwards taken to correct it by the court that had pronounced it. That tribunal could correct it, as it has, when it was discovered to be wrong, but he had no such power over it. It was his duty to conform his official action to it, and for that it 368 LANGE v. BENEDICT. FIRST DEPARTMENT, OCTOBER TERM, 1876. cannot be that he can be held personally liable, because the authority of the decision has since been superseded by another. His conduct, on the other hand, should be so far sustained as to secure him immunity, the same as it would have been if a statute had existed in favor of it, which the legislature afterwards repealed. For future purposes the repeal obliterates the law, the game as though it had never been enacted. But acts previously performed are afterwards maintained by force of the law which sanc- tioned them, at the time of their occurrence. This principle is too familiar to require the citation of authorities for its support, and all its reasons are applicable to the case now before this court. The principle invoked for the support of this action would sanction suits against judges for their official acts in a large class of cases, it should receive the approval of the courts. It would be difficult to exclude from its comprehension any cases where imprisonment should be pronounced or continued, which might afterwards be declared to be unwarranted by the final view taken of the law. Xo authority has gone so far as that, and it is not probable that any will be hereafter so widely extended. The settled principle on the contrary is, " that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convic- tions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that inde- pendence, without which no judiciary can be either respected or useful." (Bradley v. Fisher, supra^ 347.) The defend- ant cannot be held liable for the consequences of the impris- onment following the change made in the sentence. He acted judicially in making it. The exigency required him to decide, and that included the power to decide wrong without liability to himself, particularly as it practically required the abrogation of an existing, and, for the time, controlling authority, to render the error apparent. It is entirely evident that he was actuated solely by the motive of performing his duties for the best interests of the pnblic, by subjecting the plaintiff to what was believed to be no more than a proper measure of punishment, for the offense of which he had been convicted. That he considered his acts to be fully LANGE v. BENEDICT. FIRST DEPARTMENT, OCTOBER TERM, 1876. warranted by the decision of the tribunal from which he was bound to receive the law, is clearly shown by what the case shows to have transpired, and in that view he was supported by other emi- nent judges. To hold him liable for a change afterward made in it, would seem to be hardly less than a positive perversion of jus- tice. That he cannot be held liable for the five days' imprison- ment under the sentence, as it was at first pronounced, follows from the view which was adopted in the decision of the habeas corpus. For it was then distinctly held, that " the judgment first rendered, though erroneous, was not absolutely void. It was rendered by a court which had jurisdiction of the party and of the offense, on a valid verdict. That error of the court, in imposing the two punish- ments mentioned in the statute when it had only the alternative of one of them, did not make the judgment wholly void." (Ex parte Lange, 18 Wall., 174.) And as the defendant had the same juris- diction over the subject when the plaintiff's first sentence was vacated, and the last one was pronounced, he is equally entitled to the same protection as to this portion of the case. The sentence, under the circumstances, was not void. It was simply voidable by the operation of the restriction subsequently imposed upon the principle established by the case of Basset v. United States (supra), and that effect was first given to it long after the power of the defendant's court had been exhausted. The order should be reversed, and an order entered sustaining the demurrer, with the usual leave to the plaintiff to amend, on payment of costs. BBADY, J., concurred. DAVIS, P. J., taking no part. Order reversed, and order entered sustaining demurrer, with usual leave to plaintiff to amend on payment of costs HUN VOL. VIIL 41 870 GALE v. MAYOR. FIBST DEPARTMENT, OCTOBER TERM, 1876. EDWARD D. GALE, RESPONDENT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, APPELLANTS. New York charier 96, chap. 886 of 1878 Attorney for collection of personal taxes right of, to cost*. Under section 96 of the charter of the city of New York (chap. 885 of 1873), providing that no officer of the city government shall receive any fees, per- quisites or commissions, or any per centage, but that every such officer shall be paid a fixed salary, the attorney for the collection of personal taxes is riot entitled to retain the costs recovered in actions brought by him, but must pay the same over to the city. The provision of the said section, that every officer who shall receive any money which should be paid over to the city shall, before he shall be entitled to receive any salary, make a return to the comptroller showing the amount thereof, applies only to the officers themselves and not to their assistants or subordinates. Accordingly, in an action brought by the assistant to the attorney for the collec- tion of taxes to recover his salary, 7ield, that the fact that he had received and still held costs, which belonged to the city, did not constitute a full defense to the action, but only authorized the deduction by the city of such amount from what was due to the plaintiff. APPEAL from judgment in favor of the plaintiff, entered on the Terdict of a jury. fronds Lynde Stetson, for the appellant. C. A. Seward and Geo. W. Wingate, for the respondent DANIELS, J. : The verdict and judgment were in part recovered in this case, for the amount claimed by the plaintiff, as assistant clerk to the attorney for the collection of personal taxes. His salary in that capacity was $2,000 per annum, $1,000 of which, for the period between the 1st of March and the 1st of September, 1875, was unpaid. He was then appointed to the office of attorney for the collection of personal taxes, the yearly salary of which, in the com- plaint, was alleged to have been $7,500, and that was not denied by the answer. And the plaintiff also recovered the four monthly installments accruing between the 1st of September, 1875, and the GALE 9. MAYOR. 371 FIRST DEPARTMENT, OCTOBER TERM, 1876. 1st of January, 1876. While he acted as assistant clerk, and after the decease of the attorney himself, the plaintiff received certain costs, of which a balance of $286.50 remained in his hands at the time of the commencement of this action. And it was objected by the defendant that he should be precluded from recovering either of the demands asserted by him, because he had not reported or paid over that balance. In his behalf it was insisted that the bal- ance was not the property of the defendant, but belonged to and was held for the widow of the attorney, to whom he had been appointed assistant clerk. When the office of attorney for the collection of personal taxes was created, it was provided that the officer should be paid a salary, to be fixed by the board of supervisors, and in addition to that salary he should also receive the taxable costs allowed against and collected from the adverse parties. (Laws of 1867, vol. 1, 752, 8.) What the salary was, which was fixed by the supervisors, was not shown in the case. At the time of its creation, the office was made a bureau in the finance department of the city. (Laws 1867, vol. 1. 750, 1.) But it was afterward added to the law department. (Laws 1873, 495, 36.) And it was .then provided, that "no offi- cer of the city government, except the city marshals, shall have or receive, to his own use, any fees, perquisites or commissions, or any per centage, but every such officer shall be paid by n fixed salary and all fees, per centages and commission received by any such officer shall be the property of the city. (Id., 509, 96, 1126 16.) It has been urged that the terms fees, perquisites, com- missions and per centage, used in this section of the statute, do not include the costs recovered in an action against the adverse party, and accordingly that the preceding provision made by the act of 1867 still continues in force, giving such costs to the attorney for collecting personal taxes, when they accrue in actions prosecuted by him. And that construction might, perhaps, be properly given to them if they were unaffected in their meaning by any thing else contained in the act. But they were not left in that condition. They were followed by the declaration that every euch officer, that is, every officer of the city government, shall be paid by a fixed salary. And that could not very well be the case if the salary was liable to be increased or diminished by the amount 872 GALE v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. of costs collected in actions prosecuted officially by the attorney The provision made was very general, that all officers of the city government, except marshals, should be paid by fixed salaries. Nc exception was made or intended, as there should have been, if legal costs were not designed to be included within the signification which the terms fees and perquisites were intended to have. The secticu must be construed together, so that both the results contemplated "by it shall be secured. That requires that the salaries of all the officers of the city government shall be fixed, and that the fees and emoluments of the office, resulting from the discharge of the duties of the officer, shall belong and be paid over to the city. The balance shown to have been in the plaintiff's hands was not received by him as one of the officers mentioned in this section of the statute, but as the assistant or subordinate of such an officer. For that reason the retention of the money could not be a full defense against the unpaid salary, for the plaintiff was not then one of the officers subjected for that act to such a result by this section of the act. It was the officer himself, and not his subordinate, who was required to make out the return and pay over the money, and precluded from a recovery of this salary until that duty should be performed by him. The plaintiff held the balance which he had, only as so much money received by him for the use of the city. It was the property of the city, and he was liable to account for it, the same as any other officer or agent would be for corporate property received by him, and for that reason it should have been deducted from the amount claimed by him at the trial. The evidence showed that nothing had been received by him to which the defendant could make any legal claim after his appoint- ment to the office itself. There was, therefore, no defense to that portion of the recovery which included his salary from the 1st of September, 1875, to the 1st of January, 1876. The only error appearing in the case is that by which the deduction of the balance in the plaintiff's hands, as assistant clerk, was not made from the amount of his salary. To correct that, the judgment must be reversed and a new trial ordered, with costs to the defendant, to abide the event, unless, within twenty days after notice of this decision, the plaintiff shall stipulate to deduct $286.50, with interest thereon during the time the money has been in his hands, front COMSTOCK v. DROHAN. 373 FIRST DEPARTMENT, OCTOBER TERM, 1876. the amount of the verdict. In case such deduction shall be made, then the judgment as so reduced will be affirmed, without costs to either party on this appeal. Present DAVIS, P. J., DANIELS and BRADY, JJ. Judgment reversed, new trial ordered, costs to defendant to abide fivent, unless within twenty days after notice of decision, plaintifi hall stipulate to deduct $286.50, with interest during the time the money has been in his hands, from the amount of verdict, in which case judgment as reduced affirmed, without costs to either party on appeal. SYLVESTER W. COMSTOOK, RESPONDENT, v. HELEN E. DROHAN, APPELLANT. Assumption of mortgage by grantee right of grantor Judgment-rott in foreclosure against grantor Evidence against grantee, although not notified of action Costs. The plaintiff conveyed a lot to the defendant subject to a mortgage, which the latter assumed and agreed to pay. In an action to foreclose the mortgage, to which the plaintiff, but not the defendant, was made a party, a judgment for deficiency was entered against and subsequently paid by the plaintiff. In an action brought by him to recover the amount so paid, held, that section 153 of 2 Revised Statutes (Edm. ed.), page 199, providing that no proceedings shall be had at law for the recovery of a debt secured by a mortgage after a decree has been entered in an action to foreclose the same, unless authorized by the court, did not apply to an action upon a covenant such as formed the subject of the pres- ent action. The object of that provision was to limit a party attempting to enforce the col- lection of his debt by the foreclosure of a mortgage to that proceeding, unless good cause could be shown why resort should also be had to an action at law. Although the defendant was not a party to the foreclosure suit, the judgment recovered therein was competent evidence in this action to show the amount of the mortgage debt, the eale of the property, and the amount of the defi- ciency. It was not necessary for the plaintiff to give notice to the defendant of the pend- ency of the foreclosure suit. Where one person has become obligated to protect another against the consequence of his or her default in payment, a judgment regularly recovered against the party entitled to such protection is prima facit evidence of the facts established by it in his favor, in an action against the per- son bound to make the indemnity. 874 COMSTOCK v. DROHAN. FIRST DEPARTMENT, OCTOBER TERM, 1876. ID this action, fold, that the plaintiff was entitled to recover the amount of the judgment paid by him, and that the costs and expenses of the foreclosure suit should be deducted from the amount realized upon the sale of the property. MOTION by defendant tor a new trial on exceptions ordered to be beard in the first instance at the General Term, after a verdict directed in favor of the plaintiff. Palmer & De Gamp, for the appellant. F. H. Comstock, for the respondent. DANIELS, J. : The plaintiff owned a piece of land situated in the city of Brook- .yn which was incumbered by a mortgage, he had become liable to pay. On the 28th of March, 1869, he sold and conveyed the land to the defendant, and inserted in the deed the following clause : "Subject nevertheless, to a certain mortgage made by Mary I. Treadwell and Thomas H. Treadwell to Albert Woodruff, to secure $3,000, and interest, and recorded in said register's office in liber 728 of mortgages, page 157, October 10, 1867, which said mort- gage the party of the second part hereby assumes and agrees to pay, the same forming a part of the consideration money herein- before expressed, and having been deducted therefrom." The effect of which, between the plaintiff and the defendant, who were the parties to the deed, was to render the defendant primarily, as well as personally, liable for the payment of the mortgage debt. And as to her, the plaintiff continued liable for it after that only as her surety. (Burr v. Beers, 24 N. Y., 178 ; Rubens v. Prin- dle, 44 Barb., 336 ; Johnson v. Zink. 52 id., 396.) The defendant failed to pay off the mortgage, and so did her grantee. For that default an action was brought by the assignee of the mortgage for its foreclosure and a sale of the property mortgaged. The plain tiff was made a defendant in the action, but the present defendant was not. Judgment was recovered in the usual form for a fore- closure of the mortgage and a sale of the premises. The amount realized by the sale was not sufficient to satisfy the mortgage debt, and a personal judgment was entered upon the confirmation of the report of sale, against the plaintiff, which he afterwards paid ; and COMSTOCK v. DROHAN. FIRST DEPARTMENT, OCTOBER TERM, 1876. to recover the amount paid, he then brought this action against the defendant. The issue joined in the action was tried at the Circuit, and a verdict directed in his favor against her for that amount. After the opening of the case on the part of the plaintiff, the defendant's counsel moved for a dismissal of the complaint, " on the ground that the plaintiff does not show that he is in a position to sue for and recover any deficiency upon the foreclosure suit, or that he has any right to the money upon this mortgage, without placing the defendant in a position whereby she could have the benefit of the mortgage." And the same application was renewed and denied at the close of the plaintiff's proof. This statement was in no way suggestive even, of the objection now chiefly taken to the decision of the court. It was not claimed by it that the action was prosecuted in violation of the provision of the statute, declaring that no proceedings whatever shall be had at law for recovery of the debt secured by the mortgage, unless authorized by the court, after a decree had been rendered in the foreclosure case. (2 R. S., Edmonds' ed., 199, 153.) But if it had been taken it could not possibly aid the defendant in resisting a recovery in the present action. For the statute has no application to an action upon a covenant of the nature of that contained in the deed to the defendant by the grantor, after the payment of the deficiency by him. Its object was to restrain proceedings at law for the col- lection of the mortgage debt by the party endeavoring to enforce it, by an action for its foreclosure, in which all the relief he might be entitled to could be secured without subjecting the debtor to another action. (Suydam v. Bartle^ 9 Paige, 294.) And not to prevent a party who had been compelled to pay the debt, either wholly or partially, from maintaining an action for his reimbursement against another who had become liable upon an independent agreement to indemnify him. That was the nature of the obligation entered into by the defendant with the plaintiff. She agreed to pay off the mortgage debt, and by necessary implication to indemnify him against the legal consequences of her failure to perform the agree- ment. When she failed to pay, and it was paid by him on the judgment recovered against him for the deficiency, it was so much money paid for her use, and which he was entitled to recover 376 COMSTOCK v DROHAN. FIUST DEPARTMENT, OCTOBER TERM, 1876. against her. The statute never was designed to reach a case of that kind, but to limit the party prosecuting an action to foreclose the mortgage to that proceeding, unless good cause could be shown for relief from the statutory restraint. The proceedings and judgment in the preclosure case were received in evidence to show the amount of the mortgage debt, the sale of the property and the amount of the deficiency. That was objected to and is now insisted upon as erroneous, because the defendant was not a party to that action, and had no notice of its pendency. Evidence was given tending to show an informal notice of the pendency of the action to the defendant's husband as her agent. But it was denied by him, and if notice was necessary, the court could not, on that state of the proof, take the decision of the point from the jury and decide the controverted fact itself. The ruling of the court must have proceeded upon the theory, that notice to the defendant of the pendency of the foreclosure suit was not necessary in order to entitle the plaintiff to read the judg- ment roll in evidence. And as she was bound to indemnify him against the legal results to him from her default in payment, that ruling was correct. For where one person has become obligated to protect another against the consequences of his or her default in payment, a judgment regularly recovered against the party entitled to such protection is prima facie evidence of the facts established by it in his favor in an action against the person bound to make the indemnity. The point was examined, and this result maintained, in the case of Bridgeport Fire Ins. Co. v. Wilson (34 N. Y., 275, 279-281), and it was approved and applied in Konitzky v. Meyer (49 id., 571, 573, 574, 576); O'Brien v. McCann (58 id., 373, 376), and to the same general effect are the cases of Train v. Gold (5 Pick., 380) ; Leather v. Poultney (4 Binney, 352) ; Car- mack v. Com (5 id., 184); Munford v. Overseers (2 Eand., 313, 318, 319) ; Jacobs v. Hell (2 Leigh, 393, marginal paging) ; State v. ColericTc (3 Hammond, 487) ; Clark v. Carrington (7 Cranch, 308). The objection taken to the record and proceedings in the foreclos- ure suit was properly overruled, and they sufficiently established the defendant's default, and the amount he was charged with and afterwards paid by reason of it. And no evidence to the contrary was even proposed to be given on the part of the defendant. COMSTOCK v. DROHAN. 37 , FIKST DEPARTMENT, OCTOBER TERM, 1876. It was objected on her part, that the costs and expenses of the action to foreclose the mortgage could not be allowed against her to reduce the proceeds of the sale of the property because she was not made a party. And reliance has been placed upon the cases of Peabody v. Roberts (47 Barb., 92), and Oage v. Brewster (31 N. T., 218), as supporting that position. But as they considered only the rights and liabilities of a party in an action to redeem, not included in the action to foreclose, they do not sustain that point. An incumbrancer, not a party to an action for the foreclosure of a mortgage, is not fore- closed or affected in any respect by the proceeding. For that reason his obligations, in the way of payment, cannot be increased by imposing the cost and expense of it upon him. But in this case there was no other way by which the property could be applied to the payment of the debt, and the partial extinguishment of her obligation. It was a necessary result of her default in not paying as she had agreed to do with the plaintiff. Her agreement was, in effect, one which bound her to indemnify him against the con- sequences of her default. And these costs and expenses, which were deducted out of the proceeds of the sale, were made by reason of it. The plaintiff was obliged to allow them because of her default in payment, and he cannot be protected and indemnified as he was entitled to be under her agreement with him, by rendering him responsible for them. (N. Y. State Marine Ins. Co. v. Pro- tection Ins. Co., 1 Story, 458 ; Smith v. Compton, 3 Bar. & Adol. ; 407 ; 23 Eng. 0. L., 106.) The motion for a new trial should be denied, and judgment on the verdict directed for the plaintiff DAVIS, P. J., and BBADT, J., concurred. Motion denied, and judgment on verdict directed for plaintiff. HUN VOL. VIH 48 878 SIMON v. HUOT. FIRST DEPARTMENT, OCTOBER TEKM, 1876. EDWARD SIMON AND OTHERS, PLAINTIFFS, v. CLEOPHA8 HUOT AND OTHERS, DfiFKNOANTS. Promissory note Garnishment process effect of on rights of bonafide purchaser: The laws of Florida provide that in any action commenced therein a notice 01 garnishment may be issued to any person indebted to the defendant in said action, requiring him to state the amount of his indebtedness at the time of the issuing of the summons, and authorize a judgment to be entered in favor of the plaintiff for the amount of such indebtedness, if it be admitted, and an execution to be issued thereon. Held, that these provisions included all debts without regard to the form in which they were contracted, and that they were applicable to negotiable paper. Accordingly where, in an action upon a promissory note, made and payable in that State, brought by one who had purchased the same in this StatP. without notice and for full value, it appeared that while the payee still owned the note an action had been commenced against him, in which, after due service of notice of garnishment on the makers, judgment had been entered against them for the amount thereof, and their property had been seized under an exec ution issued thereon, held, that the court erred in directing a verdict for the plaintiff. MOTION by defendants for a new trial, on exceptions ordered to be heard in the first instance at the General Term. B. F. Watson, for the plaintiffs. John Swing Wrisley, for the defendants. DANIELS, J. : The plaintiffs as the indorsees, for value without notice, of a pro- missory note, were allowed to recover the amount due upon it at the trial, by the direction of the court, and the exceptions taken to that direction, and to the refusal to direct a verdict for the defend- ants, were ordered to be first heard at the General Term, and judgment in the mean time was suspended. The note was made by the defendants who were then residents and citizens of the State of Florida, on the 8th day of September, 1873, and by itt terms they promised to pay to the order of Louis Sylvester $1,655.97, at their office for value received, in twelve months aftei SIMON v. HUOT. 379 FIKST DKPAKTMEKT, OCTOBER TERM, 1876. date. The plaintiffs received the note from the payee properly indorsed by him, on the 9th of June, 1874, for the purchase-price of goods sold and delivered by them to him, and amounting to the sum unpaid by its terms. Both the complaint and the answer of the defendants averred that the note was made by them, and delivered to Sylvester, the payee, at Fernandina, in Florida, and it was payable at the defendant's office in that place. After the making and delivery of the note and on the 3d of March, 1874, an action was commenced by Charles R. Ely and others against Sylvester, the payee, in the Circuit Court of the fourth judicial circuit of that State, for the recovery of a debt claimed to be owing from him 'to them. The court had jurisdiction over the action and the summons in it was served personally on the defend- ant on the next day. At the time of the commencement of the suit, upon a proper affidavit and bond, an application was made for an attachment against the debtor, arid a writ of garnishment against Huot, Kelly & Co., the present defendants, as persons who had prop- erty, money and effects in their ..hands belonging to Sylvester, the debtor. That writ, as well as the attachment, were issued, and the writ was served on these defendants on the 3d of March, 1874, the day on which it issued. They appeared, as it required them to d<>, and filed their answer in which, among other things, they set forth the making and delivery of the note in suit, and stated that it was then still held by Sylvester, which appears to have been the fact. The action proceeded to judgment against Sylvester on the 16th day of May, 1874, and against the makers of the note on the 29th of October, 1874. By the judgment against them they were adjudged liable to pay the plaintiffs in that action the sum of $1,762.06, besides five dollars and fifty cents costs, and that payment was required from them, oy reason of their liability to Sylvester, upon the note received by the plaintiffs, for the other note made by them was shown to have passed out of his hands before the proceedings against them were instituted. Upon this judgment execution was issued on the 3d of December, 1874, and levied upon the defend- ants' goods. But at their instance the goods were released, and a levy made upon real estate owned by them in lieu of the goods, and the proceedings remained in that condition when this action was tried, it having been commenced in October, 1874. The court 380 SIMON v. HUOT. FIRST DEPARTMENT, OCTOBER TERM. 1876. held that these proceedings, although taken in conformity to the stat ute of Florida, constituted no defense to the plaintiffs' action upon the note ; and whether it was right in that position is the important point now required to be considered and decided by this court. As the note was made and delivered, and was also payable in Florida, its effect as a contract depended, as far as they had been enacted upon the subject, on the laws of that State. And by those laws, as they were proved upon the trial and appear in the case, any person indebted to a defendant proceeded against was rendered liable to be summoned to appear and state on oath, in writing, whether he, she or they were indebted to the defendant, and in what sum, at the time of the service of the summons. And when the garnishee confessed the indebtedness, as that was done by the answer filed by the defendants, then it was provided that if the plaintiff should be " satisfied with the statement, admission, con- fession, or discovery, the court shall award judgment against said garnishee for the amount so confessed, and execution may issue for the' same against said garnishee." These provisions included all debts, without reference to the form in which they were contracted, and for that reason were applicable to the note in suit. It was sufficient for the application of the statute, that the party proceeded against was in fact indebted to the defendant in the action, at the time when the proceedings were taken, and how the debt was created or by what instrument it may have been evidenced, was, therefore, not an important consideration. The liability depended on the existence of a debt, not on the form of the obligation taken for it. And for that reason to that extent it necessarily qualified the negotiability of commercial paper made and delivered within the State of Florida, and rendered the debt for which it should be given liable to be applied in payment of debts against the holder, as long as the paper continued in his hands as his property. It was not relieved from that liability by the circumstance that it was no*" due, and might afterwards be negotiated by the holder having yoeses- eion of it, to an innocent purchaser. That was a contingency for which no provision was made by the statute. The righv of the creditor to have it appropriated to his pay meet was made complete, by reason of the circumstance that the debt was owing to the debtor ; upon that the statute intervened for the protection of the SIMON v. HUOT. 381 FIRST DEPARTMENT, OCTOBER TERM, 1876. creditor, and rendered his right to sequestrate the debt absolute. It looked no further, and did not undertake to guard against th ulterior consequences which might have been expected to arise from a subsequent unauthorized negotiation of the paper. Legis- lation of this general nature affecting the negotiable qualities of commercial paper is not uncommon, and to some extent it has been enacted in this State, rendering such paper void in the hands of even innocent holders, when made in contravention of its pro- visions. That is the case as to betting, gaming, usurious and other transactions forbidden by law. The holder of the note though shown to reside beyond the limits of the State was actually within it, and so was the note, when the action against him was commenced, and the process issued for that purpose was personally served upon him. By that service, and the service of the summons upon the present defendants, complete jur- isdiction was acquired over the subject-matter and the parties to the action, and the note in suit was subjected to the power and authority created over it by the statute. And whoever purchased it afterwards from the defendant Sylvester took it as it was affected by the pro- ceedings taken, and subordinated to that authority, even though that rule would not ordinarily be applied to the holder of negotia- ble paper. (Leitch v. Wells, 48 Barb., 641, 649 ; Hopkins v. McLaren, 4 Cowen, 667-678, 679 ; Story on the Conflict of Laws [5th ed.], 548, 551.) A similar point, under circumstances less favorable to the defendants, arose in the case of Hull v. Blake (13 Mass., 153), where like proceedings which had been prosecuted in the State of Georgia were held to be a bar to an action brought upon notes by a bona fide holder for value, who received them before they were due. In the course of the decision of that case, after holding that the notes derived their validity as contracts from the laws of the State of Georgia, it was further held by PARKER, C. J., and concurred in by the court, " that if by the laws of the State of Georgia, in force when these notes were given, they might be discharged by a pay- ment to the original promisee after they were indorsed, and such payment had been actually made, proof of these facts would secure the defendant from a second payment, although it should be demanded by an indorsee who had t>aid a valuable consideration, and who must 882 SIMON v. HUOT. Finsx DEPARTMENT, OCTOBER TKKM, 1876. in that case be considered as relying upon his indorser if he should fail in recovering the amount from the promissor. A law providing that any creditor of the promisee may compel the promissor to pay the debt to him, notwithstanding the evidence of its negotiable quality and that it may have been actually negotiated, would have the same effect. Such a provision would be extraordinary and con- trary to the effect generally given to negotiable securities in any mercantile country ; but, if the law be so, it must have operation on the contract wherever it may be sued, because the laws of the place where the contract is made necessarily make a part of the contract, and are understood as its governing principle." (Id., 156.) The same point was again examined and considered by that court (Meriam v. Rundlett, 13 Pick., 511), and the preceding decision was approved. But as other property had also been rendered liable to the payment of the judgment, and that of the debtor himself was required to be first exhausted and applied in payment of the judgment, the court held the proceedings which had been taken in the State of Missouri to be a defense only by way of abatement or suspension of the action, until it could be seen whether the makers of the note would be obliged to pay the amount of it there. The game general principle as that which was held in Hull v. Blake was maintained in Holmes v. Remsen (20 Johns., 229), but there the debt was not negotiable, and actual payment had been enforced. Also, in Emhree v. Hanna (5 id., 101), where a debt of the same nature had been attached in another State. A like effect was given to a similar principle in Trubee v. Alden (13 S. C. N. Y. [6 Hun], 75). See, also, 2 Parsons on Bills and Notes, 386-390, where the authorities affecting the exoneration of the makers under circum- stances like those presented in this case have been collected and discussed, and the conclusion of Hull v. Blake sustained. Also, volume 1, 260, where it is stated as the law that, " if the defendant is compelled by due process of law to pay the note to another party, the plaintiff who holds the note cannot recover it of him. Thus, if the paper be not negotiable, and trustee process is served upon the promissor, or if the paper be negotiable, and such process ia served in States where it may be served in such cases, the promissor mast pay the plaintiff in the trustee process, and this would be a defense if sued by the holder." (2 Parsons on Cont. [6th ed-X SIMON v. HUOT. 383 FIRST DEPARTMENT, OCTOBEB TERM, 1876. 606-608.) That is the necessary effect of the judgment in the State in which it may have been recovered, and under the Constitution of the United States, it is entitled to the same faith and credit from the courts in the other States. ( Wheeler v. fiaymond, 8 Cow., 311.) By the judgment of the court recovered in Florida, the defend- ants were unqualifiedly required to pay the amount of the note to the plaintiffs in that action. No such contingent liability was cre- ated as appeared in Meriam v. Rundlett (supra) ; and besides that, execution had been issued and properly levied upon under it, which was probably sufficient to satisfy the judgment. The principal defendant was not a resident of the State, and did not appear to have any other property than this debt within it and subject to the process of its courts ; and for those reasons, under the authority, of Hull v. Blake (supra), a complete defense was shown to the action. But if the contingency that Sylvester might still pay the judgment is entitled to weight in the consideration of the case, the proceed- ings taken required an abatement or suspension of the action until that should be determined, and that was sufficient to render the direction of a verdict against the defendants as the makers of the note erroneous. It has been urged that those proceedings should be denied effect, as collusive, because of the change made in the property levied upon, and the return of the note by defendants to Sylvester two days after the service of the writ of garnishment. But as the change in the levy in no way released the defendants or their property from the payment of the judgment against them, and it did not appear that they could have lawfully withheld the note, it having been pledged to them for a special purpose only, it cannot, with any degree of propriety, be now held that the proceedings were collusive for those reasons. That may be made to appear upon another trial of the action by evidence which will justify the jury in adopting that view of the proceedings. But as they now appear to stand, they are not sufficient to prevent a recovery upon the note by the plaintiffs. There should be a new trial of the action, with costs to abide the vent. DAVIS, P. J., and BBADT, J., concurred. Motion for new trial granted, costs to abide event. 884 RUGEN v. COLLINS. FIBST DEPARTMENT, OOTOBEB TERM, 1876. JOSEPHINE RUGEN AND HERMANN RUGEN, RESPOND- ENTS, v. CATHARINE E. COLLINS AND MARIETTA COLLINS, AN INFANT, IMPLEADED WITH OTHERS, APPELLANTS. Costs Conflicting claims to real property Code, 449. Where, in an action brought in pursuance of section 449 of the Code, to deter- mine conflicting claims to real property, the plaintiffs' complaint is dismissed, the defendant is entitled to costs, as a matter of right, and the court cannot prevent his recovering the same. APPEAL from so much of a judgment dismissing the plaintiffs' complaint as denied costs to the defendants, and from an order denying a motion made by them for the allowance of costs. J. H. Whitdegge, for the appellants. Samuel Wood, for the respondents. DANIELS, J. : This action was brought for the determination of conflicting claims to a parcel of real estate. It was tried, by consent, before the court, without a jury, and the complaint dismissed, without costs, because it failed to state facts sufficient to constitute a cause of action. And the defendants have appealed from the part of the judgment depriving them of their costs, claiming that their right to recover them was, in no respect, subject to the discretion of the court. In that view they also presented a bill of costs to the clerk for adjustment, which was rejected by him. And from his decision they appealed, by way of motion, to the Special Term. The same disposition was there made of their bill, and from the order then made they have appealed to this court. These decisions of the clerk and of the motion by the Special Term, were clearly correct in point of practice, even if the portion of the judgment appealed from shall prove incapable of being sustained. For, as long as that continued in force, and unreversed, it had the effect of depriving the defendants of their costs, and, even if it had been erroneously directed, it could not be corrected in a collateral proceeding like RUGEN v. COLLINS. 385 FIRST DEPARTMENT, OCTOBER TERM, 1878. that resorted to by the defendants, for the allowance of their costs. If any error had intervened, by which the defendants were deprived of their costs, it could only be corrected by a vacation of that portion of the judgment, or in a direct proceeding, by way of appeal, for the purpose of reviewing it. Neither the clerk nor the Special Term had any power over the decision, and, consequently, couM not disregard it. But in the appeal from the judgment the question is directly presented, whether costs were properly denied. Before 1849 the subject-matter of the action required only a special proceeding, for its prosecution and determination. But in that year it was pro- vided that the rights of the parties to such a controversy might be enforced by an action. (Code, 449.) That made no other change than to constitute it the proper subject of an action. It left the rights of the parties in all other respects within the con- trol of the preceding provisions of the law. That resulted from the language used in the enactment of the section, as well as from the circumstance that none of those provisions were changed or repealed by it. The simple power alone was created of com- pelling the determination of the conflicting claims by action. And when it should be done, it was required to be " pursuant to the provisions of the Revised Statutes." And by an amendment to those statutes made by chapter 511 of the Laws of 1855, it was declared that the issues formed should be tried in the same manner as issues in other personal actions and the successful party entitled to judgment for such relief as he could recover, with costs as iu other personal actions under the Code. (Laws of 1855, chap. 511, 4.) This was in terms an amendment of the provisions con- tained in the Revised Statutes, requiring the proceeding to be commenced by a mere notice. But from the language used by section 449 of the Code it was made equally applicable to an action instituted for the same purpose, for it provided that the action should be prosecuted pursuant to the provisions of the Revised Statutes. And it could not consistently have been designed that costs should be awarded when the proceedings were commenced by a notice and denied when the same right was enforced by action. The right to costs was provided by the Revised Statutes as amended by the act of 1855, and it was to be alone pursuant to such pro- HUN VOL. VIII. 49 886 RUGEN t>. COLLINS. PIBST DEPARTMENT, OCTOBER TERM, 1876. visions that the action could be prosecuted under the Code. It was simply irt the form of the proceeding that a change was made, not in the rights ur obligations of the parties to it. They were intended to be the same in the action as they would be if a notice instead of a summons were made use of for the purpose of commencing them. The right to costs was also secured by the provisions of the Code applicable to all civil actions, which since 1849 included an action to determine conflicting claims to real estate. For when this action was tried they gave the plaintiffs costs of course, when s claim of title to real property arose upon the pleadings, and in actions of which a court of a justice of the peace had no jurisdic- tion ; and an action of the present description was comprehended by both these provisions. For a claim of title to real property did arise upon the pleadings, and it was an action which could not be commenced or prosecuted in the court of a justice of the peace. If the plaintiffs had recovered judgment they would consequently have been entitled of course to their costs ; and where that is the case, the next section secures the same right and one as absolute in its form to the defendants when they succeed in the action. Whether the case be considered as being within the control of the provisions of the Revised Statutes, as they have been amended by the act of 1855, or those of the Code which are applicable to civil actions, the right of the defendants was complete to their costs upon the dismissal of the plaintiffs' complaint, and the court could not properly prevent their recovery by any direction to that effect given in its judgment. It is only in another class of actions that a discretion over the subject of costs has been conferred upon the courts. (Code, 306.) The order appealed from denying the defendants' motion should be affirmed, with ten dollars costs besides disbursements ; and so much of the judgment as dismissed the plaintiffs' complaint with- out costs should be reversed. That will leave the complaint dis- missed unqualifiedly, and entitle the defendants to their costs of the action and on the appeal from the judgment, to be adjusted in the usual way. DAVIS, P. J., and BRADY, J., concurred. WALSH v. MEAD. 387 FIRST DEPAKTMENT, OCTOBER TERM, 1876. Order denying the defendants' motion affirmed, with ten dollars costs and disbursements ; and so much of the judgment reversed as denies costs to defendants, and costs are allowed to the defendants in the action and on the appeal. WILLIAM WALSH, RESPONDENT v. JANE 0. MEAD, APPELLANT. Improper construction of building, causing snow to fall from roof liability of owner for injuries resulting from. Negligence Landlord and tenant covenant to repair. Where the roof of a building, in a large city, is so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk, and there is no adequate guard at the edge to retain it, it is, in judgment of law, a nuisance. Where one passing upon the sidewalk is struck and injured by snow which has slid from a roof, so constructed, the owner of the building is liable for the injuries thereby occasioned, even though" the building be at the time in the occupation of a tenant, who is bound to make all needful repairs. Where premises are affected by a nuisance at the time of their demise, the owner is liable for any injury occasioned by it to a third person, even though the neg- ligence of the tenant contributed thereto. APPEAL from judgment in favor of the plaintiff, entered on the verdict of a jury. This action was brought by the plaintiff to recover damages for injuries caused by the sliding of a quantity of snow from the roof of 91 South street, in the city of New York, on the 27th day of January, 1871. The action was based on the negligence of the defendant as the owner of the premises. The answer admitted the defendant to have been the owner of the premises, but denied the other allegations of the complaint, and alleged that on the 27th of January, 1871, the premises in question were under lease for a term of years, and that the lessee was in actual possession, under covenants to repair. It was shown on the trial that the plaintiff was passing on the sidewalk, in front of 91 South street, in company with a man by the name of Anderson, and that a quantity of snow slid from the roof 388 WALSH v. MEAD. FIRST DEPARTMENT, OCTOBER TERM, 1876. of the building upon both of them, and caused the injuries complained of. It was shown that the house had a slanting roof, but did not have a snow-guard on the side toward the street, and that the gutter broke away in the center at the time of the sno\\ -slide. Evidence was given tending to show that a snow-guard or snow- board is an essential appliance on slant-roofed buildings, for the protection of persons traveling on the walks below, and that one was put upon these premises after the accident. A girder or stick of timber was near or upon the curb-stone opposite these premises, at the time of the accident, over which it was claimed that the plaintiff was pulled by Anderson when the accident occurred ; and prior thereto, and after the defendant had leased the premises, a mansard roof had been placed upon the adjoin- ing building, which extended somewhat above the roof of defend ant's premises, and which she claimed rendered the premises more dangerous than at the time of the demise. Oeo. V. N. Baldwin, for the appellant. It is a well settled principle of the common law that the occupier, and not the land- lord, is bound as between himself and the public, to keep build- ings, and other structures abutting upon the common highway, in repair, so that they may be safe for the use of travelers thereon, and i&prima facie liable to third persons for damages arising from any defect. (Regina v. Watts, 1 Salk., 357 ; Cfieetham v. Hamp- ton, 4: T. R., 318; Regina v. Bucknall, 2 Lord Raymond, 804; Lowell v. Spaulding, 4: Gush., 277; Oakham v. Holbrook, 11 id., 299 ; Kirby v. The Boylston Market Association, 14 Gray, 249.) In order to hold the landlord, the construction must be not only faulty, but damages must immediately and necessarily flow from the construction ; but if the construction be usual, and has been up for years, without damage or danger, the landlord will not be held liable, even though another construction might have avoided it. (Fish v. Dodge, 4 Denio. 311 ; Picard v. Collins, 23 Barb., 444.) The landlord will not be held liable if the construction is not in itself a nuisance, but becomes so either by the method of its use by the tenant, or by neglect on his part ; in other words, if he fail to take such care to avoid accident as is incumbent upon every man in the management of property. (Rich v. Basterfield, 4 0. B., 783 WALSH v. MEAD. 389 FIRST DEPARTMENT, OCTOBER TERM, 1876. Clancy v. Byrne, 56 N. Y., 129 ; Gandy v. Jubber, 33 L. J. [Q. B.] 151 ; 5 B. & S., 78 ; .fia&m v. Brown, 1 E. D. Smith, 36; City of Lowell v. Spaulding, 4 Gush., 277.) TF". R. Beebe, for the respondent. It is well settled that the landlord is liable for injuries resulting from defective construction, or delects existing at the time of the demise, even though the premises were at the time of the accident in the possession of A lessee who had covenanted to do all needful repairs. (Moody v. The Mayor, 43 Barb., 282; Whalen v. Gloucester, 4 Hun, 24.) If the plaintiff heard the snow sliding from the roof, and appre- hended danger therefrom, it. would have been negligence on , his part to remain beneath it. It was his duty to flee the imminent peril, and having no time to mature a plan, it would be excusable, if in escaping one danger he should fall upon another. The defendant would be liable as the one whose negligence had put him to the extremity. (Whartou's Law of Negligence, 94, 304, 337, 377; Buel v. N. Y. Cent. B. R. Co., 31 N. Y., 314; Coulter v. Am. Un. Exp. Co., 5 Lans., 67; Stokes v. Saltonstall, 13 Peters, 181.) DANIELS, J. : The appeal taken in this cause is exclusively from the judgment recovered in the action, and, consequently, questions of law are alone presented for the decision of this court. An appeal upon the law is all that can be taken from a judgment, when it has been entered upon the direction of a single judge of the same court. The only cases in which the facts can be reviewed, by an appeal from the judgment, are those where the trial has been had by the court, or before referees. (Code, 348.) Where the trial has been by jury, the facts of the case can only be reviewed by way of a motion for a new trial on the minutes, or upon a case, and on an appeal from the order entered upon the decision, when the motion has been heard upon the minutes, or by the Special Term. (Code, 264, 265, 349, sub. 2 ; Carpenter v. Beare, 4 Hun, 509.) A motion for a new trial was made by the defend- ant upon the minutes, and denied, but, as no appeal from the order was taken, the objections urged against the verdict on the evidence alone, are not now before this court for its consideration 890 WALSH . MEAD. FIRST DEPARTMENT, OCTOBER TERM, 1876. The legal points in the case arise upon the motion made for a nonsuit, and the exceptions presented to the charge of the court. The action was for damages caused by an injury to the plain- tiff's person by the sliding of snow from the roof of a building owned by the defendant, and striking the plaintiff as he was pass- ing along the sidewalk. The building was at the time in the possession of a tenant under a lease requiring that the tenant should keep it in repair. And for that reason it has been strenuously insisted that the defendant as owner was not legally liable for the consequences of the accident. That would very clearly be the case if it had resulted from the omission of the ten- ant to keep the building in repair, or from the manner in which it was used and occupied by him. But the theory of the plaintiff's case was, that the roof of the building had not been properly con- structed or guarded by the owner, and that it was for that reason the snow was precipitated from it on the person of the plaintiff. Evidence was given tending to support that view of the fact, and while it was controverted on the part of the defendant, the inquiry as to its truth still remained a proper one for the decision of the jury. And they have found the fact as it was asserted on behalf of the plaintiff. From that it must be assumed, in disposing of this case, that the roof of the building was so constructed as to render the snow falling upon it liable to be precipitated upon the side- walk below, and that it had no guard at its edge which could be reasonably expected to prevent that result. A roof so constructed and maintained in a large city is in judg- ment of law a nuisance, for it necessarily imperils the safety of persons passing below it in the lawful use of the street upon which it fronts. Any act of an individual " though performed on his own soil, if it detracts from the safety of travelers, is a nuisance." (Shipley v. Fifty Associates, 101 Mass., 251, 253 ; same case, 106 id., 194, 198, 199.) In one of its essential features, it is true, that case differed from the one now before this court, for it appeared that the landlord had retained the supervision of the build- ing. (See, also, Kirby v. Boyhton, 14 Gray, 249.) But the proposition has been held to be a sound one by nearly all the cases requiring its consideration, that the landlord or owner will remain liable after a lease and exclusive possession under WALSH v. MEAD. 391 FIRST DEPARTMENT, OCTOBER TERM, 1876. it taken by a tenant of premises affected by a nuisance at the time of the demise, for an injury occasioned by it to a third person, and upon general principles, he ought not to be exonerated from that liability, even though the tenant's negligence combines with the same wrong in producing such a result. The erection and main- tenance of a nuisance is a wrong, and by leasing the building affected by it to another person, the owner continues it and stipulates for the enjoyment of a profit from it. That has always been held to be sufficient to render him accountable to innocent third persona for the consequences of injuries received by them from it. In the case of The Mayor of Albany v. Cttnliff (2 Comst., 165), it was stated to be the law, that " a party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land. But it is only where he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent, " or where he conveys the property, with cove- nants for the continuance of the nuisance." (Id., 174, 175 ; Hanse v. Cowing, 2 Lans., 288 ; Taylor's Land, and Ten. [2d ed.], 206 ; Fish v. Dodge, 4 Denio, 311 ; Waggoner v. Jermaine, 3 id., 306 ; Moody v. Mayor, etc., 43 Barb., 282 ; Irvin v. Wood, 4 Robt., 138 ; Irvin v. Fowler, 5 id., 482 ; Whalen v. Gloucester, US. C. N. Y. [4 Hun], 24; Bellows v. Sackett, 15 Barb., 96 ; Pickard v. Col- lins, 23 id., 444 ; Conhocton Stone Company v. Buffalo, N. Y. and Erie Railway Co., 52 id., 390 ; Swords v. Edgar, 59 N". Y., 28.) This point was not presented by the case of Clancy v. Byrne (56 N. Y., 129). And Leonard v. Stover (115 Masb. ; 86), which held the owner not to be liable in a case similar to the present one, was con- sidered to have been erroneously decided in the decision made in Swords v. Edgar (su/pra). This case too is even distinguishable from that, in the circumstance that it cannot be said that the tenant was negligent for not removing the snow, because the injury hap- pened so soon after it fell. The slide, as the jury have found the fact, was not caused by the act or omission of the tenant, but by the steepness of the roof upon which as it melted it could not remain, and it would obviously have been the same if the building had not been leased, but had remained unoccupied ; no agency of the tenant intervened to produce the result, but it was solely Attributable to the fact that the roof was so steep that it could not 392 WALSH t>. MEAD. FIRST DEPARTMENT, OCTOBER TERM, 1878. retain the snow, and such a structure must clearly endanger the safety of persons passing upon the walk beneath it. On the part of the defendant, evidence was given tending to show that another person walking with the plaintiff pulled hinc sideways against a girder, and in that manner caused the injury ol which he complained. And upon that part of the case it was held by the court, and the jury were charged, that if " Anderson jumped on one side over a girder," which was lying in or near the gutter, "and having hold of the plaintiff pulled him sideways and caused Walsh to trip or stumble over the girder," and he was injured in that way, and not struck by the mass of falling snow, then the defendant was not liable. The proposition was clearly and fully stated by the learned judge, and it was all upon this subject which the defendant couljl reasonably expect should be said, and she had no right to claim that it should be repeated. But after the charge was delivered her counsel requested the court to say that, "if the jury believed from the evidence that the witness Anderson, at the time of the accident, laid hold of the plaintiff and drew him over the girder, and that by reason thereof the injury took place, the falling of the snow is too remote, and the plaintiff cannot recover." That is precisely what the learned justice had previously declared, and nothing had been afterwards said in any degree tending to qualify or change the proposition. If it was obscured by any thing said by way of responding to the proposition again, it could not have been from any design to modify or change it, because it had been so decidedly and unequivocally held before that. But rather from the effort made to secure what was only a repetition of the comments made upon a subject already clearly and justly dis- posed of in favor of the defendant, but without either withdraw- ing or repeating what had been so well stated in this connection, the learned justice added that, "if Anderson and Walsh heard this snow, and were both trying to escape the danger of injury therefrom, and Anderson by a sudden impulse, arising from such danger, did pull Walsh to assist him in escaping the danger, the alleged negligence of the defendant is not too remote to be con- sidered as having produced the accident." It will be seen that it was not held that the defendant would be liable if he was injured by being pulled over the girder, and in view of what had been WALSH v. MEAD. 393 FIKST DEPARTMENT, OCTOBER TERM, 1876. so clearly said before, that could not have been intended nor under- stood by the jury. For the purpose of considering the effect, the charge must be regarded as an entirety. And that renders it apparent, that what was to be understood from this statement was, that the defendant was not entitled to be exonerated from liability, even if Anderson, acting upon a sudden impulse created by the presence of danger, pulled the plaintiff to assist him in escaping, if the falling snow still produced the injury. That construction is required by the circumstances that it had been previously held in distinct and unqualified terms, that the defendant was not liable if the plaintiff was injured by being pulled against the girder, and the omission to state that the defendant would be liable for the con- sequences of such an act in response to this request. The court did not decline so to charge, because that had already been done, and what had been said upon the subject was left without qualifi- cation. There was no ground, therefore, on which an exception to a refusal could properly be placed. The court was also requested to charge : " That if the independ- ent act of a third person intervened between this wrong complained of and the act which was the immediate cause of the injury, the injury was too remote, and the plaintiff cannot recover." To that the court responded : " If Anderson and the plaintiff, Mr. Walsh, when going up South street, saw or heard this mass of snow coming, and both Anderson and Walsh, by a sudden impulse to avoid the snow, jumped one side, and in that way the plaintiff was injured, then the defendant's negligence would not be too remote, because they would not have jumped but for the falling of the snow, and the danger in which they were placed by its fall." No exception was taken to this proposition, nor to any supposed omission to embody in it the full effect of the request. But if there had been to the omission to charge it as it was stated, it would be completely answered by the fact that the court had already charged it, so far as it was applicable to what the evidence on the part of the defendant tended to show, that such an independent act had intervened and caused the injury. The proposition, which was stated in this con- nection by the court, in substance, was, that if the plaintiff, actuated by fears of apparent danger, was injured in his endeavors to avoid it, that would not of itself relieve the defendant from liability HUN VOL. Vin. 50 WALSH v. MEAD. FIRST DEPARTMENT, OCTOBER TERM, 1876. And that seems to be sound, and sustained by authority. (Bud v. New York Central R. R. Co., 21 N. Y., 314 ; Coulter v. American M. U. Exp. Co., 5 Lans., 67; Stokes v. Saltonstatt, 13 Peters, 181.) It has also been claimed, that the court should have allowed greater effect than was given to the circumstance of other buildings being in the same condition as this one ; and toa change made in the elevation of an adjoining building. As to the latter, it was held that the defendant was not liable if that caused the accumula tion of the snow. And the former was also charged, with the qualification that the defendant should have adopted such safe- guards to prevent the sliding of the snow from the roof, as was sanctioned by more modern experience than that existing when the building was erected. That seems to have been entirely sound. But if it were not, as no exception was taken in either case, the judgment could not be reversed by reason of it. The only excep- tion taken was at the end of the charge, and then only to the propo- sition held concerning the act of Anderson in pulling the plaintiff. But if that could be extended so far as to nominally include all that had been said by way of response to the requests, it would be too general and indefinite to be of any service to the defendant. (Walah v. Kelly, 40 N. Y., 556 ; Requa v. City of Rochester, 45 id., 130 ; Ayrault v. Pacific Bank, 47 id., 570.) The charge upon the whole case was as favorable as the defendant was entitled to have it under the evidence. And if " the minds of the jury were confused, and discriminations they might otherwise have made were prevented," it was evidently because the charge, as it was delivered, was obscured by the responses made at the defendant's request. It not unfrequently proves to be the case, that an entirely just and proper charge is rendered of but little benefit to the party whose rights have been carefully guarded by it, in consequence of detached propositions requiring portions of it to be repeated, or the court to extend them farther than either the law or the evidence would appear to justify. That may be unfortunate for the party insisting upon it, but the court would not be justified in distorting or harshly constru- ing the charge as an entirety, to relieve the party from its effects. The judgment should be affirmed. DAVIS, P. J., and BEADY, J., concurred. Judgment affirmed. BARRY v. BRUNE. 395 FIRST DEPARTMENT, OCTOBER TERM, 1876. ROSALIE C. BARRY, RESPONDENT, v. WILLIAM H. BRUNE AND J. M. HARRIS, APPELLANTS, IMPLEADED WITH THE MUTUAL LIFE INSURANCE COMPANY, RESPONDENT. Insurance on life of husband for wife's benefit assignment of, by wife, through coercion Trust Judgment of foreign court. The plaintiff, under the influence and coercion of her husband, assigned to the defendant Brune two policies of insurance, issued to her on the life of her hus- band, to secure a debt due from him to the defendant. The latter, fearing that the assignment was invalid under the laws of this State, in pursuance of an arrangement with the company, allowed the policies to be forfeited for non- payment of premiums, and received new policies from the company for his benefit as a creditor, for the same amounts, bearing the same numbers, refer- ring to the same register in the company's books, and for the same premiums, except that the latter were payable semi-annually instead of annually, such policies being issued upon the original applications and without a new examination. Held, that the new policies were to be considered as renewals of the old ones, and subject to a trust in favor of the plaintiff the same as was impressed upon the original ones. After the commencement of this action, brought to restrain the company from paying over the amount of the policies to the defendant Brune, and to compel the payment thereof to the plaintiff, Brune commenced an action against the company in the United States Circuit Court, in Maryland, upon the new policies, and recovered judgment for the amount thereof. Held (1), that this judgment was impressed with the same trusts in favor of the plaintiff as were the poli- cies ; (2), that it only decided that the company was bound to pay the money to the defendant in pursuance of its agreement so to do, and that it did not decide that he would be entitled to hold the money for his own use, and free from the trust existing in favor of the plaintiff. Bfld, further, that it was within the power of this court to enjoin the defendant Brune from taking any proceedings to enforce the collection of the judgment recovered by him in Maryland, and that a judgment to that effect in this case was proper, and should be affirmed. APPEAL from a judgment in favor of the plaintiff, entered on the trial of this action at the Special Term. S. P. Nash, for the appellants. John K, Porter, Henry E. Dames and Jitlien T. Dames, foi The Mutual Life Insurance Company, respondent. Edmund Randolph Robinson, for the plaintiff respondent. 896 BARRY v. BRUXE. FIRST DEPARTMENT, OCTOBER TERM, 1876. DANIELS, J. : The object of this action was to prevent the moneys claimed upon two policies of life insurance, issued by the defendant The Mutual Life Insurance Company, from being paid over to the defendant Brune, or his assignee, and to secure an adjudication that the policies were, in fact, the property of the plaintiff, and that the moneys owing upon them should be paid to her. The policies were issued in the name of, and to the defendant William H. Brune, upon the life of John S. Barry, the plaintiffs husband. And when they were issued, and at all times since then, Brune, as a creditor, had an insurable interest in the life of Barry exceeding the amount insured. One of the policies was for the sum of $20,000, and the other for $5,000, and they were both issued on or about the 18th day of January, 1872, and Barry, whose life was insured, died in the following month of March. Before either of these policies was issued, two other policies in the same amount were issued by the same company, upon the same life, in favor of the plaintiff, who was then the wife of John S. Barry. The first was dated on the llth day of January, 1867, for the sum of $20,000, at the annual premium of $592.80, payable on that day in each year. And the second was dated on the 9th of December, 1870, for the sum of $5,000, and it was issued in consideration of the payment of an annual premium of $168.60, payable on that day in each year. The premiums on these policies were properly paid up to and including the year 1871, when the plaintiffs husband, John S. Barry, became embarrassed in his business, which was that of banker. And at his request the defendant Brune loaned and advanced him the notes of his firm for about the sum of $80,000. These notes were to be paid by Barry, and, in the mean time, he was to secure the firm of Brune & Sons against their liability upon them. For that purpose, in July, 1871, the plaintiff under the persuasion, controlling influence and coercion of her husband, executed an assignment in blank which was afterwards so filled up by his direction as to assign the two policies in suit to the defendant Brune, and it was then mailed to him by depositing it in the post-office at the city of New York, addressed to him at Baltimore, which was the place of his resi- dence. He held the assignment and the policies in that form until BARRY v. BRUNE. 397 FIRST DEPARTMENT, OCTOBER TERM, 1876. the days on which the premiums respectively became payable and then omitted to pay such premiums in order to secure a forfeiture of the policies for that default, and have others issued to him in his own name in their place. It appears to have been understood between himself and the agent of the insurance company at Balti- more, that the policies should be so changed partially, if not wholly for the purpose of correcting an infirmity in the title created by the assignment, arising out of the suspected inability, under the Jaws of this State, of a married woman to transfer the insurance effected for her benefit upon the life of her husband. By a clause contained in each of the policies, they were liable to forfeiture for the non-payment of the premiums on the days when payment should be made, and after such forfeiture the company was in terms exonerated from all liability upon them, but that was in this case qualified by the understanding that the assignee was to receive others in his own name in lieu of them. Pursuant to that the policies were allowed to lapse for such non-payment and, with the assent and co-operation of Barry, those now in suit were applied for and received by the defendant Brune. They were issued and delivered to him upon the basis of the applications and examina- tions made for those held by the plaintiff; they bore the same numbers respectively ; they were for the same amounts, referred to the same registers in the company's books, and were for the same premiums, but payable in semi-annual instead of annual payments, as the policies which had lapsed, and they were issued in considera- tion of the payment of the premiums remaining unpaid on the original policies, and that to the extent of $169.48 was made from dividends, or profits, credited to the plaintiff by the company on the larger and first policy it had delivered to her. It is entirely clear from these facts, that no substantial change was made in the insurance by what transpired. The new policies were a substitute for those previously issued, a continuation in fact of the same insurance but in the name and for the declared benefit of the defendant Brnne. They were designed simply to secure him the same ad vantage expected to have been derived from the assignment alone, and which would have resulted from it, if that had been a valid and binding instrument. It was not intended to create a new insurance, but simply to render that previously made effectual 398 BARRY v. BRUNE. FIRST DEPARTMENT, OCTOBER TERM, 1876. and irrevocable in the hands of the defendant Brune. That if very apparent from the circumstances already mentioned, and from the facts that no increase or change was made in the amount of the insurance, or of the premiums to be paid for it. Neither party intended or expected that the company should be held liable on the four policies, but that the first two should expire according to their terms, and the others be substituted in their place, and that is what was actually effected. It was done to render the insurance a valid security in the hands of the defendant Bruue, which it was sup- posed the assignment alone had failed to accomplish. That waa the nature of the understanding entered into with the agent of the insurance company, and its performance was consummated, as far as that was practicable, by the forfeiture of the old and delivery of the new policies. They made the same insur- ance with the simple change, that from that time it stood in Brune's name instead of being held by him as assignee ; and it was supported by the identical interest in the life of the debtor, Barry, as the assignment was made to protect. The same end was to be subserved by each of the instrumentalities, that was the security of the creditor upon the obligation of the debtor. In one form it was to be done by means of the assignment, which, if it had been valid, would have entitled him to the insurance moneys for its extinguishment ; and in the other by a surrender of his formal position as assignee for an insurance in consideration of it directly in his own name. The object to be attained by each was precisely the same ; and if Barry had lived and paid the notes, there can be no doubt, from the nature of the transaction, that the plaintiff would have been concededly entitled to the benefit of the final insurance. Her policies were the moving or inducing cause of those issued to the defendant Brune. If they had not been, there is good reason for believing that a new application and examination would have been required, together with an increased premium for the additional age of Mr. Barry at the time. But instead of being an independent transaction, the two policies finally issued, proceeded from and depended upon the others, in such a manner as to form a mere continuation of the same insurance. The liability created by those issued to the plaintiff was carried into those received for them by Brune, the defendant, and for the purpose of determining the BARRY v. BRUNE. 399 FIRST DEPARTMENT, OCTOBER TERM, 1876. rights of the parties they must be regarded as, in all essential respects, the same. For that reason, if the policies assigned were necessarily, though not designedly, held by the defendant Brune for the benefit of the plaintiff, and not for himself or his firm, the same trust impressed itself upon those substituted in their place. It is a settled principle, both in law and equity, that the true owner of property cannot be deprived of his or her right to it by chang- ing it into something else, as long as the identity can be ascertained and traced. (Silsbury v. McCoon, 3 Cow., 379, 390.) The rule is broad and liberal, holding that " wherever the property of a party has been wrongfully misapplied, or a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held in its new form liable to the rights of the original owner, or cestui que trust. The general proposition, which is maintained both at law and in equity, upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, not being l>ona fide purchasers for a valuable consideration without notice, any more valid claim in respect to it than they "respectively had before such change." (2 Story's Equity Jur. [llth ed.], 572, 1258.) And it has been further affirmed, by the same author, that " it will make no differ- ence in law, as indeed it does not in reason, what change of form, different from the original, the property may have undergone, whether it be changed into promissory notes or other securities, or into stock or into money. For the product of the substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fails." (Story on Agency [4th ed.], 229-231.) And the principle has been frequently applied for the protection of the rights of the assured in cases in which one policy has been surrendered and another received in its place, on the basis of the original insurance. (Dutton v.Willner, 52 N. Y., 312; Nesbitt v. Berridge, 10 Jurist [N. S.], 53 ; Ghapin v. Fellowes, 36 Conn., 132 ; Lemon v. Ph&nix Life Ins. Co., 38 id., 294 ; Nor vwod v. Guerdon, 60 111., 253.) To that extent it is entirely applicable to the present controversy 400 BARRY v. BRUNE. FIRST DEPARTMENT, OCTOBER TERM, 1876. even if the defendant Brnne can in any proper sense be considered a bonafoJt assignee of the original policies. For by the statute of the State, authorizing a married woman to insure the life of her husband, the insurance has been exonerated from the rights of hip creditors, and placed beyond her power of alienation to them (3 R. S. [5th ed.], 240, 80 ; Eadie v. Slimnwn, 26 N. Y., 9 ; Barry v. Equitable Ins. Uo., 59 id., 587.) And as the assignment proceeded from her to the defendant Brune, he had constructive notice of that infirmity in his title which seems to have been followed by actual notice of the fact, before the conversion of the old policies into the new ones. He was not a lonafide assignee therefore, and not within the protection often secured to bona fide purchasers for value without notice. He had what the law regards as the equivalent of actual notice, and acquired his knowledge of the facts from which it proceeded, before he endeavored to change the form of the policies. When he made that change, for the purpose of defeating the rights it was supposed the plaintiff would otherwise have been entitled to claim, it was both unauthorized and wrongful. But even if he had been an assignee for value without notice, his title would still have been defective. For by the assignment which was made no title whatever to the policies was transferred to him. For there was not only an absence of power to make a valid assignment in the assignor, but beyond that, it never received that assent from her which was necessary to render it binding upon her. It was found as a fact, upon evidence not questioned as insufficient, that she executed it under the persuasion, controlling influence and coercion of her husband ; and that, as well as her want of power, rendered it entirely inoperative against her. (Barry v. Equitable Life Ins. Co., supra Whitridge v. Barry, 42 Md., 140.) For that reason, as the insurance continued to be practically the same as it previously had been, after the new policies were 'ssued, and, in substance, only a continuation of that which had been made in her own name, she was entitled to receive the moneys the company became liable to pay upon them. But it has been urged by the learned counsel representing the defendants Brune and Harris, the latter of whom has been appointed trustee in place of the deceased assignee Whitridge, that the insur- ance company was not entitled to be protected against a further pay BARRY v. BRUNE. 401 FIRST DEPARTMENT, OCTOBER TERM, 1876. ment of the same amount to such trustee, as it has been by the judg- ment entered in this action. And reliance has been placed upon a judgment recovered in the United States Circuit Court for the dis- strict of Maryland, in support of that position. That judgment was recovered in favor of Horatio S. Whitridge, as assignee of the defendant Brune, against The Mutual Life Insurance Company. It was, in form, an action at law upon the policies issued to the defendant Brune, to recover their amount because of the decease of Barry, whose life was insured by them. And it was commenced while the present action was pending, and after both Brune, and "Whitridge his assignee, had appeared as defendants in this suit. The insurance company, by its plea in the United States Circuit Court, denied that it was indebted to the plaintiff in the action there pending, or that it had promised as was alleged, and then set forth the pendency of the present action as a defense. A replica- tion to the plea was filed, which in no manner changed the issues tendered by it. Upon those pleadings the action was tried, and a recovery had in favor of the plaintiff for the amount due on botk the policies. That was a direct result of the form of the contract entered into upon the forfeiture of the policies issued to the plaintiff. The simple pendency of this suit in this State constituted no legal obstacle to the maintenance of that action in the State of Maryland. And as the insurance company had promised to pay the loss to Brune, the assignor of the plaintiff in that action, and -had become indebted by the decease of Barry, a liability, according to the contracts entered into, was clearly made out. That was all that was in issue in the action in the United States Circuit Court ; and to that extent only, is the judgment recovered conclusive as to the obligation of the company. Whitridge, as the assignee of Brune, could very properly maintain that action as he did, for he had the express promise of the company to his assignor to predicate it upon. And that was sufficient to entitle him to recover in a court of law. But whether, after a recovery, he could appropriate the fruits of it, or whether by para- mount title of the plaintiff in this suit he could be deprived of them, were matters in no way involved in the litigation between Whitridge, as assignee of Brune, and the company. What was in controversy, was his right to the insurance moneys under the terms of the policies. So far as the company was concerned, and without a suDerior claim- HUN VOL. VIII. 51 402 BARRY w. BRUNE. FIRST DEPARTMENT, OCTOBEB TEKM, 1876. ant, he was clearly entitled to an adjudication of those matters in hia favor, and that was all that the judgment recovered in the United States Circuit Court could or did settle, for a judgment is only final and conclusive on the points actually in issue, and which may be litigated by the parties. (Royce v. Burt, 42 Barb., 655 ; Burwell v. Knight, 51 id., 267 ; Sweet v. Tuttle, 14 N. Y., 465 ; Campbell v. Consalus, 25 id., 613 ; Angel v. Coon, 38 id., 378.) As the policies themselves, upon which the action was prosecuted, were in equity affected by a trust in Bruue's hands for the benefit of the plain- tiff, so was the judgment recovered by his assignee, and so would the money be if he were permitted to receive it. The trust which Attached itself to the policies also impressed itself upon the judgment for the recovery of the amount of them. That necessarily follows from the principle already mentioned, and as the existence of such trust was not involved in the action in which the judgment was recovered, and the plaintiff was in no way a party to it, that was a proper subject of inquiry in this case, notwithstanding the existence of that judgment. It was only adjudged in the Circuit Court tha the plaintiff in that action could enforce the promises the company had made to his assignor. Whether he could retain the money from the plaintiff in this action after he recovered it, was neither in issue nor determined. That depended upon evidence and facts not perti- nent to that controversy, but entirely extraneous to it, and they formed a subject-matter entirely distinct and independent of it. It is by no means an unusual thing for one party to recover and collect money from another, which in the end may be found to be the equitable property of a third, and wherever that may appear to be the case, equity always intervenes and determines who has the paramount right to receive and retain it. In fact that is always the case as to property held in trust either by the wrongful act of a party, or upon a lawful and conventional trust, created by the act of one person for the benefit of another. The obligations are the same in each class of cases. The trustee, whether made such by operation of law or the voluntary act of another, holds the trust property not for himself, but for the party beneficially interested in it and ultimately entitled to receive it ; and the recov- ery of it fr 3m another, either by force of a contract for its payment or restoratio ,or by means of the title alone, vests the person charged BARRY v. BRUNE. 403 FIEST DEPARTMENT, OCTOBER TERM, 1876. with the trust with no greater right or interest as to the ceatui qut trust, than he would have if the subject-matter were never involved in legal controversy. From the relation borne to the property, what- ever the party so recovering it may do, he does not act for him elf, but for the party who has the final right to receive and recover the property from him. That was the situation of Brune and his assignee in the present case. While they had the nominal and apparent title to the policies, the plaintiff was the beneficial and paramount owner of them. And her title could not be, and was not, divested or in any form impaired by reason of the circum- stance that a judgment for a recovery of the debt had been rendered in favor of one of them upon contracts made with the other, enforcing the simple obligation for the payment of the money ; whether in equity the plaintiff or the assignee of Brune should receive the money, was another controversy, in no way disposed of until it was heard and decided in the present action. And in this case it was properly held that she had the paramount right, and that the money should be paid to her as her property. That resulted necessarily from the facts that the original policies were hers ; that she never parted with her title to them, and by those issued to the defendant Brune the same insurance was in effect continued. There was but one insurance either in fact or in law, and the contest was limited to the right to its proceeds. The insurance company became liable for only one aggregate sum of $25,000, and it received the premium or consideration for that, and for nothing beyond it. Whitridge, as the assignee of Brune, who received the new policies in the place of and as substitutes for the old ones, limited his claim to the recovery of that money, and for that judgment was awarded in his favor. The plaintiff in this action claimed the same fund, and her right to it has been established. The payment or deposit already made of it, pursuant to the judgment in this case, will discharge the entire liability of the insurance company, and satisfy the judgment recovered by Whitridge and now hold by the defendant Harris, who was appointed as his trustee upon his decease. And it was therefore within the power of this court to enjoin further proceedings after- wards for the enforcement of that judgment. Complete justice 404 BARRY v. BRUNE. FIRST DEPARTMENT, OCTOBER TERM, 1876. could not otherwise be done between the parties. Whitridge recovered a judgment for money which was really the prop erty of the plaintiff in this action. And this court has now determined that instead of its being paid to him, and then by him, as it should be if he received it, paid over to the plaintifl', that it shall be paid directly to her. And it could not properly do that, without at the same time protecting the company against liability to make another payment of it to Harris us the trustee of Brune and Whitridge. The Code invested the court with the power of pronouncing just such a judgment in the case. It could not otherwise determine the entire con- troversy before it or the ultimate rights of the parties as between themselves, as it has been empowered to do. (Code, 122, 274.) It was also properly incidental to an action in equity prosecuted for the settlement of conflicting claims to the same fund or property. Judgment for its payment to one of the parties required that the .others should be precluded from also demanding or receiving it ; and that could only be done in one of two ways : either by requiring the judgment recovered for the debt to be actually satisfied and discharged of record, or enjoining the party in whose favor it stood from afterwards proceeding with its collection. The insurance company was made a party to the action for the purpose of concluding it by the judgment which should be rendered on the conflicting claims made to the proceeds of the policies. And one of the incidents in the determination of such a controversy is to afford protection to the debtor on making the payment directed by the final* judgment. It is based upon the facts proved, for the purpose of showing to whom the money should be rightfully paid ; and for that reason, within the rule mentioned in the case of Kay v. Whittaker (44 N. Y., 565, 576). Complete redress could be awarded in no other way. As the judg- ment in the other case was not actually satisfied of record, its future collection, on the payment of the money to the person entitled to receive it, or its deposit in court for her, was lawfully enjoined. (Savage v. Allen, 54 N. Y., 458; N. T. and Harlem R. R. v. Haws, 56 id., 175.) The case was a special one, and the con- troversy was properly terminated in that manner. There would have been no reason in allowing it to remain open for future litiga- PETERS v. MAYOR. 405 FIRST DEPARTMENT, OCTOBER TERM, 1876. tion upon the same evidence, in the courts of another State. But as this action was the first and only one commenced for the purpose of settling the conflicting claims made to the insurance money, by a party who was a citizen of this State, arid all the parties having any interest in the controversy were brought before the court, it could do no less than it did, under the well settled principles of equity jurisdiction, which required that the dispute should be com- pletely and effectually disposed of by the judgment finally ren- dered in the case. (JRathbone v. Warren, 10 Johns., 587 ; Miller v. McCan, 7 Paige, 451 ; Elliott v. Pell, 1 id., 263, 268 ; Jones v. Grant, 10 id., 348, 350.) Any different disposition would have invited further litigation between some of the parties without being attended by any beneficial result not attainable in the present action. The judgment was right and it should be affirmed, with costs to the respondents. BEADY, J., concurred. DAVIS, P. J., taking no part. Judgment affirmed, with costs. GEORGE C. PETERS AND OTHEKS, EXECUTORS, ETC., OF JOHN R. PETERS, DECEASED, APPELLANTS, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, RESPONDENT. Municipal corporation street opening neglect of owner to remove building unauthorized acts of officers in so doing liability of city therefor measure of damages. The city of New York having instituted proceedings to acquire title to the lands necessary for the widening of Church street, an award was made to the plain- tiffs for land taken from them and for the expense of removing the buildings thereon. Subsequently, upon their failure to remove the buildings, the street commissioner, whose duty it was to take charge of the opening and altering of streets and avenues, advertised them for sale and paid over the proceeds to the defendant. In an action by the plaintiffs to recover the value of the buildings, held (1), that the materials in the buildings belonged to the plaintiffs, and that it was unlawful for the defendant to sell the same; (2), that though the street commissioner was not authorized to sell the buildings, yet, as he acted for the defendant in good faith and in pursuance of a general authority possessed by him, it was liable therefor. 406 PETERS v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. The plaintiffs should be limited in their recovery, to the amount realized on the sale and actually paid over to the defendants, with interest, less the amount allowed to them for the removal of the buildings. (Per DAVIS, P. J.) APPEAL from a judgment in favor of the defendants, entered on the dismissal of the plaintiffs' complaint on the trial at the Circuit. Timothy F. Neville and Moody B. Smith, for the appellants James M. /Smith, for the respondent. DANIELS, J. : It seems to be conceded in this case that the defendant instituted, carried on and completed proceedings for widening Church street, in the city of New York ; that a portion of the land required and taken for that purpose, belonged to an estate of which the plaintiffs were the executors ; and in the award made they were allowed the value of the land, and the expense of removing the buildings from it, and required to make such removal. The award was paid, but the buildings were not removed by the plaintiffs, nor by any person acting under their authority. After they had neglected, for the period of about sixteen months, to take measures for the removal of the buildings, the street commissioner, whose duty it was, under the ordinances of the city to open the street, advertised them for sale and sold them, and they were afterward removed and appropriated to their own use by the purchasers. The plaintiffs, claiming such sale and appropriation to have been unlawful and unauthorized, brought this action to recover the value of such materials. It appeared that all the buildings in the way of the completion of the widening of the street were sold at the same sale, and the proceeds received from them were paid into the treas- ury of the city. Upon this state of facts, together with evidence skewing the value of the property claimed, the complaint of the plaintiffs was dismissed, to which they, in due form, excepted. By the decision which was made in the case of Schuchardt v. The Mayor (53 N". Y., 202), the title of the owners to the mate- rials in the buildings upon land taken for widening this street, was established. And it was further held that they could recover for a sale and appropriation of them, without their authority, against ihe defendant, when that was made by its act. That was necee- PETERS v. MAYOR. 407 FIRST DEPARTMENT, OCTOBER TERM, 1878. sarily the result of sustaining the complaint in that case. And it restricts the present controversy to the question, whether the sale was, in this case, shown to have been made by the act or authority of the defendant. That was not proven by direct evi- dence. But it did appear that the city was engaged in the promo- tion of the enterprise of widening this street, and 'lie reuio. ;; the buildings was indispensable to the success of that enterprise. It was made the duty of the street department, whose chief officer was the street commissioner, to open streets. For the purpose of opening this street that officer advertised, and caused to be sold, the buildings standing upon the land which had been taken for the widening of the street, and the city received the proceeds. It was not shown that it knew whence they proceeded. But that sould reasonably have been inferred from the public nature of the enterprise in which it was engaged ; the necessity of the removal of the buildings ; the notoriety of the commissioner's acts for the promotion of that end, and the nature of the fund paid over to it. There was enough in the case to render the inquiry a proper one for the jury, whether the city had not confirmed the acts of its officer by receiving and enjoying their fruits ; and if that were the -jase it was equivalent to a direct authority for the performance of such acts. The decided probabilities of the transaction would appear to lead to the conclusion that the city desired to complete the work of widening the street, and directed the street department to remove the buildings standing in the way, without indicating the manner in which that was expected to be done. And in the exercise of that general authority, the commissioner having no place of storage or deposit for the materials, concluded that they could be most effectually removed by a sale, and made that accord- ingly. It was one mode of accomplishing the result he was required to produce, and for that reason not so entirely beyond the limits of the authority given to him, as to preclude the defendant from rendering itself liable by a ratification, proceeding from the acceptance and retention of the proceeds of the sale. (Dillon on Municipal Corporations [2d ed.], 385, and notes; Angell & Ames on Corps. [4th ed.], 304 ; Bennett v. Judson, 21 N. T. T 238, 239, 240; Thayer v. City of Boston, 19 Pick., 511.) There 408 PETERS v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. can be no doubt but the commissioner acted bona fide pursuant to a general authority possessed by him, and supposed he did no more than to discharge the duty which had been imposed upon him. The act was done for the corporation, in the promotion of a proper and lawful enterprise prosecuted by it, and under its gen- eral authority, and that has been held to be sufficient to render it liable for the consequences of a deviation from the strict line of euch authority. (Lee v. Village of Sandy Hill, 40 N. Y., 442.) The act of removing the buildings was a lawful and proper one,, and if no more than that had been done the defendant would not have been liable. But to secure that removal a sale of their materials was made, and the purchaser according to its terms appro- priated them to his own use. Those acts, while they secured the removal the commissioner was authorized to effect, were unauthor- ized, because the materials belonged to the plaintiffs. And for the reasons already assigned, enough was shown to entitle them to have the questions submitted to the jury, on the determination of which the liability of the defendant for such sale depended. The judgment should be reversed and a new trial ordered, with costs to abide the event. BRADY, J., concurred. DAVIS, P. J. : The plaintiffs were wrong-doers in not removing the buildings after receiving compensation for the land and for the expense of removal. The building became a nuisance, which it was the duty of the proper city authorities to abate. The city was not bound to incumber the public streets with the building or its materials, nor to furnish a place of deposit on any of its other property. It had a right, therefore, under the peculiar circumstances of the case, to tear down the building and if necessary to dispose of the mate- rials in any form requisite to get them out of the way of the street to be opened. In getting the building out of the way, the com- missioner of public works only did an act which the plaintiffs were bound to perform, and if the same was done with reasonable care and prudence he should be regarded as acting with authority from the plaintiffs, who, from their neglect or refusal to remove the building BANCKER v. MAYOR. 40$ FIRST DEPARTMENT, OCTOBER TERM, 1876. after compensation for so doing had been paid to them, must be regarded as assenting that the authorities might treat and dispose of the same as a nuisance. If in disposing of a public nuisance a sale of the materials is made so that money therefor is realized, the proceeds may be regarded as the property of the owner of such nuisance, which may be recovered after proper demand, and after deducting the expenses incurred in the abatement of the nuisance. I think, in this case, there could be no recovery of the city beyond the amount realized on the sale and actually paid into its treasury, with interest after proper demand, subject, also, to a deduction of the amount allowed and paid to plaintiffs in the award for the removal of the building. In no other way can justice be done to the city, when placed in such a position by the wrongful conduct of a party, whose lands have been taken for a public street on payment of just compensa- tion both for the land and the removal of buildings. I concur that there should be a new trial in this case, but if the city be found liable, the damages should be measured by the rules above suggested. Judgment reversed, new trial ordered, costs to abide the event. DAYID 0. BANCKER AND MICHAEL J. QUIGG, RESPOND- ENTS, v. THE MAYOR, Em, OF THE CITY OF NEW YORK, APPELLANTS. Certificate when made prerequisite of payment unreasonable refusal to give effect of Presumption of fact, to sustain referee's report. Where an act authorizing the construction of a court-house in the city of New York provided, that payments therefor should be made by the city upon the pro- duction of vouchers, approved by the commissioners by whom the building was to be erected, a refusal on their part to approve a hill on the ground that they have no personal knowledge of the matter is unreasonable, and relieves the applicant from the necessity of complying with this provision of the act. When the uncontradicted evidence establishes the existence of a fact, essential to HUN VOT, VIII. 52 410 BANCKEU y. MAYOR. FIBST DEPARTMENT, OCTOBEK TEBM, 1870. the plaintiffs right to recover, it will be presumed, iii support of a judgment in his favor, that such fact was found by the referee, though not so stated in his report. APPEAL from a judgment iu favor of the plaintiffs, entered upon the report of a referee. This action was brought to recover $4,873, with interest, for work, labor and services performed on, and materials furnished in the building of the Harlem court-house. It appeared by the evi- dence that the plaintiffs, who were partners in the carpenter trade, furnished materials and performed labor as alleged in the com- plaint, in pursuance of directions given by a Mr. Scallon, who was claimed by them to be an agent of the commissioners appointed to erect the court-house. That the plaintiffs prepared bills for the amount of their claim, and caused them to be presented to the commissioners for their approval, in pursuance of section 3, chapter 410 of 1870, author- izing the construction of the court-house, but that the commission- ers refused to approve them, giving as a reason, "that they had no personal knowledge of the matter." Chas. P. Miller, for the appellants. Henry Parsons, for the respondents. DANIELS, J. : The judgment from which the appeal has been taken, was recov- ered for the value of labor and materials performed and supplied by the plaintiffs in the erection of the Harlem court-house, in the ninth judicial district of the city of New York. The controversy was limited to the point of the liability of the defendant for the debt, the amount of which was practically undisputed. The materials were furnished and the work performed under the immediate employ- ment of Mr. Scallon, who represented himself as the superintend- ent under the commissioners designated in the act for the erection of the court-house. -His declarations of the fact that he was super- intendent were received without objection, during the trial, as evi- dence in the case. And it appeared that he presented a bill to the defendant, which contained a charge for his services in that capacity during the year 1870, in which the plaintiffs commenced their work, BANCKER v. MAYOR. 411 FIRST DEPARTMENT, OCTOBER TERM, 1876. and that it was allowed and paid by the authorities of the city. From these facts the referee was warranted in finding that Scallon was, as he claimed he was, the superintendent in charge of the erec- tion of the building. The commissioners were empowered by the act designating them, to employ him in that capacity ; for it was provided in it that they might employ the necessary assistants required in the performance of their duties, and that they should be paid by the comptroller of the city, upon vouchers approved by the commissioners. (Laws of 1870, chap. 410, 3 ) Under that general authority the plain- tiffs were also employed and performed the services and supplied the materials for which payment was claimed by them, and it was clearly broad enough for that purpose. The commissioners were empowered to locate and erect the court-house and for that pur- pose to employ the necessary assistants, and as such the plaintiffs seem to have been engaged. There is nothing in the act by which the commissioners them- selves were rendered liable for the price, etc., or value of the materials supplied and work performed in erecting the building ; neither have they been provided with any fund for the payment of the expenses to be incurred. It could not have been designed, therefore, that they should become personally liable for such pay- ment. The act provided that the land purchased and the building erected under the superintendence of the commissioners should be the property of the defendant (Laws of 1870, chap. 410, 1), and that payment of the necessary assistants employed by them should be made by the comptroller of the city in the usual method for making payments for city purposes, upon vouchers approved by at least a majority of the commissioners, and that the board of supervisors should raise the necessary funds for that purpose by a tax upon the real and personal estate within the city. (Id., 3.) From these provisions it is very clear that the work was to be done by the commissioners for the defendant and at its expense. They were made its agents, and it became liable for their lawful acts, and it was properly held to be so by the referee. The case in this respect is entirely different from those relied upon in support of the appeal, and in which no such agency and obligation to make payment appeared to have beet provided for. 412 BANCKER y. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. It was not objected that the tax had not been levied and col- lected, as directed by the act for the payment of the expenses incurred, but it was claimed that no recovery could be had, because the commissioners had approved of no vouchers entitling the plain- tiffs to payment. To meet this delect in the case, it was shown that an application was made to them for the approval of the bills, which they refused, for the assigned reason that they had no per- sonal knowledge on the subject. That was an unreasonable refusal. If they had no personal knowledge, it was their duty to have insti- tuted such an investigation as would have enabled them to have discharged the duty which the statute had imposed upon them. It was the intent of the act, that they should determine the justice of the demand made before payment could be legally required, and it was their duty to acquire the knowledge requisite for the intelli- gent performance of that duty. By refusing to do that they put it out of the plaintiffs' power to comply with this provision of the act, and entitled them to payment of what was justly owing with- out the vouchers unreasonably denied them. This was held in substance by the Court of Appeals, in the decision of the case of The Bowery National Bank v. The Mayor, etc. (not yet reported). The referee must have adopted this view of the evidence, although he has not so stated in his report. But as the fact appeared by the evidence, which was not contradicted, and it was essential to the right of the plaintiffs to recover, it is to be pre- sumed, in support of the judgment, that it was found though not stated by the referee. (Cooper v. Bean, 5 Lansing, 319 ; Grant v. Morse, 22 N. Y., 323 ; Chubluck v. Vemam, 42 id., 432.) The judgment should be affirmed. BEADY, J., concurred. DAVIS, P. J. (dissenting): The city was not bound, nor was the comptroller authorized to pay until the presentation of the vouchers required by the act. The approval of the commissioners was an essential part of such vouchers, made so by the act itself. The respondents were bound to present to the comptroller such approval, or to satisfy him that it was improperly or unreasonably withheld. Nothing of that PEYSER v. MAYOR. 413 FIBST DEPARTMENT, OCTOBER TERM, 1876. kind was attempted to be shown. If the city authorities, on such facts being shown to them, had refused to allow and pay the demand, notwithstanding the unreasonable and illegal refusal of the commissioners to approve the account, then the plaintiffs might, upon proper proof, maintain their action. The referee has not, however, thought the question whether or not the commissioners unreasonably withheld their approval, one of sufficient importance to be passed upon by him. To me it seems important that he should not only have found an unreasonable refusal, but also that the fact that the vouchers had been'presented to the commissioners and approval refused, on improper grounds, was made known to the city authorities when payment was demanded or before suit brought. I think there should be a new trial, with costs to abide event Judgment affirmed. SIEGMUND M. PEYSER, APPELLANT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, RESPONDENTS. Assessment payment of, under protest Voluntary payment right to recover amount paid. The plaintiff received a notice from the collector of the city of New York, stating that an assessment had been made on a lot owned by him, payment of which was expected to be made on or before July twenty-seventh, and that unless paid before that day interest would be charged at the rate of seven per cent from the date of confirmation. Plaintiff saw the collector, told him the matter was in litigation and that if he paid, it would be under protest; the collector said, " you can do as you like," whereupon plaintiff paid the amount. Subsequently, upon a petition filed by the plaintiff and others the assessment was vacated. In an action brought by him to recover back the amount so paid, held, that as the payment was made voluntarily and with full knowledge of all the facts, the action could not be maintained. (BRADY, J., dissenting.) APPEAL from a judgment in favor of the defendants, entered upon an order dismissing the complaint herein. The action was brought to recover the amount of an assessment paid to the defendant. 414 PEYSER u. MAYOR. FIBST DEPARTMENT, OCTOBEK TERM, 1876. It appears that in the latter part of July, 1869, the plaintifl received a notice from the bureau of collection of assessments of the city of New York, stating that " an assessment has been made on your property * * * which was confirmed on the 3d of March, 1869, and that payment of the said assessment is expected to be made on or before the 27th day of July, 1869, and unless paid on or before said day, interest will be charged at the rate of seven per cent from the date of confirmation. * * * " In pursuance of the notice the plaintiff went to the office and told the collector that the matter was in litigation and that if he paid, it would be under protest, the collector said, f 'y>-u can do as you like," and plaintiff then paid the amount. TTie assessment having been subsequently vacated upon the application of plaintiff and others, this action was brought to recover back the amount so paid. A., ft. Dyett, for the appellant. The assessment had been con- firmed by this court, and the proceedings of the commissioners, thus confirmed, were judicial and in every respect equivalent to a judg- ment against the plaintiff for the amount of the assessment. (Bank of Commonwealth v. The Mayor, etc., 43 N. Y., 184, at pages 188, 189, per GKOVER, J. ; Swift v. Poughkeepsie, 37 id., 511.) The plaintiff's sole remedy was by petition to vacate, and he could not obtain any injunction, order, or process, staying the enforcement of the assessment ad interim, and was, therefore, com- pelled to pay the assessment. (Bank of Commonwealth v. The Mayor, etc., 43 id., 184-189 ; Crook v. Andrews, 40 id., 547, at pp. 548, 549 ; Wilson v. The Mayor, etc., 4 E. D. Smith, 675, 677, 702, 703 ; Swift v. Poughkeepsie, 37 id., 511.) It was not neces- sary that he should wait for the issuing of any warrant to collect the assessment, or a sale of his property. (Bank of Commonwealth v. The Mayor, etc., supra ; Sturgis v. Allis, 10 Wend., 355 ; Meagher v. Kellog, 24 id., 32 ; Garr v. Martin, 20 K Y., 306.) It was enough that payment was demanded, though even that was not necessary. (Lott v Sweezy, 29 Barb., 92, 93, and cases cited.) D. J. Dean, for the respondents. Where there is no fraud or mistake in matter of fact, if the law was mistaken, the rule applies that ignorantia juris non excusat. (Mowatt v. Wright, 1 Wend., 355 ; JSilbie v. Lumlie, 2 East, 470 ; Brisbane v. Dacres, 5 Taunt., PEYSER y. MAYOR. 415 FIRST DEPARTMENT, OCTOBER TERM, 1876. 155; Bulkeley v. Stewart, 1 Day, 123.) Where money is paid with a full knowledge of the facts and circumstances upon which it is demanded, or with the means of such knowledge, it caunct be recovered back upon the ground that the party supposed he was bound in law to pay it, when in truth he was not. (Clarke v. Dutcher, 9 Cow., 674; Lowery v. Bordieu, Dougl., 470; Knibbs v. Hall, 1 Esp. K P. Gas., 83 ; Brown v. McKinnally, id., 279 ; Marryatt v. Hampton, 2 id., 546; Stevens v. Lynch, 12 East, 38.) Where a void assessment has been paid voluntarily, an action to recover the same cannot be maintained. (Fleetwood v. The Mayor, 2 Sandf., 475 ; Forrest v. The Mayor, 13 Abb. Pr., 350 ; Trinity Church v. The Mayor, 10 How. Pr., 138 ; Supervisors of Onondaga v. Briggs, 2 Denio, 26 ; Wyman v. Farnsworth, 3 Barb., 369 ; Mutual Life Ins. Co. v. Wager, 27 id., 354 ; Sand- ford v. The Mayor, 33 id., 147 ; Commercial Bank of Rochester v. The City of Rochester, 42 id., 488 ; N. Y. and Harlem R. R. Co. v. Marsh, 2 Kern., 308 ; Swift v. City of Poughkeepsie, 32 N. Y., 511.) DANIELS, J. : The first conclusion adopted in this case was, that Mr. Justice BBADT was right in his views of it, and that the plaintiff should have been allowed to recover. But that is believed to be unsound, for the reason that the money was paid for the purpose of discharg- ing the assessment, without any mistake concerning the facts on which it depended for its validity. The plaintiff was subjected to no compulsion requiring the payment to be made by him, but it was made voluntarily. And when that appears to be the case, and the payment was not induced by some mistake of fact, it cannot afterward be recovered back. (Fleetwood v. Mayor, etc., 2 Saudi'., 475 ; Wyman v. Famsworth, 3 Barb., 369 ; Sandf ord v. Mayor, 33 id., 147 ; Commercial Bank of Rochester v. City of Rochester, 42 id., 488 ; Forbes v. Appleton, 5 Gush., 117.) The rule upon this subject has been recently stated in terms specially applicable to a case like the present one, in the following words: "If he volun- tarily yielded to the claim, and there was no duress of person or govde, or fraud on the part of the creditor, the payment conclude? him, and he could not avoid the forr*> or effor* -~-f +h? *c* ^ rv 416 PEYSER v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. incut as an admission, or reserve the right to draw the matter into controversy thereafter by paying under protest. The act of payment was voluntary, and if he intended to litigate the right, lie was bound at the time, to take his position and resist tin lemand made upon him." (Flower v. Lance, 59 N. Y., 603. JlO; Duncan v. Bellin, 60 id., 151.) The present case differs from that of The Bank of Commonwealth v. Mayor (43 N. Y., 184), in the circumstance that while the proceedings there were pending upon certiorari, a warrant was issued for the col- lection of the tax, and the defendant is stated to have collected it by its officers by menace and compulsion. And also from Preston v. Boston (12 Pick., 7), where it was paid to avoid a warrant which was to be issued for its collection by a certain specified day. No authority has gone further than that case in the way of maintain- ing such an action ; and the present one falls very far short of it, so far as the feature of compulsion is concerned. The evidence showed that notice alone was sent to the plaintiff that the assess- ment had been made ; that payment was expected before the 27th day of July, 1869, and if not paid on or before that day, interest at the rate of seven per cent would be charged upon it from the date of its confirmation. Upon that the plaintiff paid it without even a menace of process or the seizure of his property, insisting, at the time, that the proceedings had been irregularly carried on, and that others were pending or about to be taken to set the assess- ment aside. And in reply he was informed by the officer receiv- ing payment that he could pay or not, just as he chose. No authority has yet proceeded so far as to sanction the right to recover hack money paid under such circumstances, even after the assess- ment itself has been set aside, as this one was afterward on the plaintiff's application. The claim has no equities in its favor which should induce or justify such an extension of the existing rule on this subject, as would warrant the courts in sustaining it. The plaintiff's property was improved and advanced in value by the pavement, for the expense of which the assessment was made ; and that benefit he will retain, without compensation for it, if the payment made for it should be recovered back, unless a re-assess ment should be made for it, as in that case it ought to be under th power conferred by chapter 338 of the Laws of 1858, section 5. PEYSER v. MAYOR. 417 FIKST DEPARTMENT, OCTOBER TERM, 1876. The defect for which the proceedings were set aside, did not con eist in any omission to perform the work for which the assessment was required to be paid, but it was alleged to be an irregularity arising out of the inclusion of the cost of work done that was not authorized by the order in pursuance of which the assessment was laid. It is to be presumed, from the evidence, that the plaintiff's property received in its improvement a reasonable equivalent for the amount paid by him ; and that no real injustice will be sus- tained by him through the failure of his action to recover back the money he has paid for it. The judgment in the case should be affirmed. DAVIS, P. J., concurred. BEADY, J. (dissenting) : The plaintiff paid an assessment imposed upon his land for a locai improvement. Subsequently, on his application, the assessment was declared to be void, and it was vacated. These facts appear- ing the complaint was dismissed upon the ground that having voluntarily paid the assessment without disputing its validity, he could not recover. The decision thus made was erroneous. It cannot be denied that there are conflicting views expressed upon this subject in the cases in which the question has been directly or incidentally discussed, but the later cases warrant the conclusion that such a claim may be recovered back. (See Sank of the Com- monwealth v. The Mayor ^ 43 N. Y., 184 ; Chapman v. City of Brooklyn, 40 id., 372.) The doctrine which has been declared and upheld in reference to voluntary payments may still be main- tained upon the principle of stare decisis, but it cannot stand the test of natural justice and equity, and the greater the inroads made upon it the better. The plaintiff in this case was entirely justified in assuming that the assessment was duly imposed, that is, was a burden upon his land and in paying it on that assumption. He was equally justified when he ascertained his error in that respect to seek to have it set aside, and when it was declared to be void, the defendants were bound in honesty to refund his money. It is certain that they were not entitled to it, and that fact should deter- mine the duty of the defendants at once. I think the judgment HUN VOL. VIII. 53 418 POST v. WEIL. FIRST DEPARTMENT, OCTOBER TERM, 1876. should be reversed and a new trial ordered with costs to abide the event. We cannot say that the defendants may not affect the right of the plaintiff to recover by facts to be shown by them in connec- tion with, or in relation to the claim made herein Judgment affirmed. WINIFRED POST AND OTHEBS, RESPONDENTS, v. MAX WEIL, APPELLANT. Title condition subsequent Stranger to title. Hogan contracted to sell certain land to Mark upon condition, that no part thereof or buildings thereon " should ever be used or occupied as a tavern." Subse- quently he conveyed the same land to trustees, subject to the said agreement. Thereafter he and the trustees conveyed the land to Mark by a tripartite deed, (reciting the agreement and subsequent conveyance to the trustees), " subject to and upon the condition hereinbefore expressed, unto the said Mark, his heirs and assigns." The deed contained a covenant by Hogan and the trustees that some or one of them were or was lawfully seized, etc., and full covenant of warranty by Hogan. Subsequently the trustees reconveyed to Hogan all the property undisposed of by them. Held (1), that the condition was reserved to Hogan and not to the trustees; (2), that he was not a stranger to the title, and that the reservation to him was valid; (3), that the existence of the con- dition was such a defect as justified a purchaser in refusing to accept the title, APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. James C. Carter, for the appellant. Wm. M. Evarts, for the respondent. BRADY, J. : This is an appeal from a judgment decreeing a specific perform- ance by the defendants of an agreement to purchase lands. At an auction sale of real estate belonging to the plaintiffs, on the 1st of April, 1873, the defendant made a large purchase. He paid ten per cent of the purchase money, and the auctioneer's fee ; and was to pay the residue on the fifteenth of May following. By the terms of the sale, purchasers were to have a good title in fee simple, with POST v. WEIL. 419 FIBST DEPARTMENT, OCTOBER TERM, 1876. certain exceptions, not material to be stated. An examination of the title, by the attorneys for the purchaser, disclosed the fact that, on the 21st day of January, 1811, one Michael Hogan, then owner of the property and from whom the plaintiffs, through divers mesne conveyances, derived their title, agreed in writing to sell a tract of land of which the premises purchased were a part, to one Jacob Mark, for the sum of $16,000, upon the special condition that no part of the land or buildings thereon "should ever be used or occupied as a tavern" Four days afterwards, and before perform- ing his agreement aforesaid, Hogan conveyed the same tract which he had agreed to convey to Mark, unto Robert Lenox, Jacob Stout and John Wells, " subject to the aforesaid contract or agreement," and upon certain trusts in the said indenture expressed. Neither the agreement to sell to Mark, nor the trust indenture aforesaid are, so far as is known, now in existence ; nor is any thing known of their contents, except what is recited in the deed next to be mentioned. On the 29th day of May, 1811, a deed was executed between Hogan and wife, parties of the first part, Lenox, Stout and Wells, parties of the second part, and Mark of the third part, reciting that Hogan " did, in and by a certain agreement in writ- ing, bearing date on the twenty-first day of January, one thousand eight hundred and eleven, agree to sell to the said Jacob Mark, the party of the third part, the tract, piece or parcel of land here- inafter mentioned and described, with the house, outhouses and buildings thereon, for the sum of sixteen thousand dollars, upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern." The foregoing extract is all that is known of the agreement. The deed last men- tioned continues with the following recital : " And, whereas, the eaid Michael Hogan, and Frances his wife, did, in and by a certain indenture, bearing date on the twenty-fifth day of January, in the year of our Lord, one thousand eight hundred and eleven, made between them, the said Michael Hogan and Frances his wife, of the first part, and the aforesaid Robert Lenox, Jacob Stout and John Wells, of the second part, grant, bargain, sell, alien, release, convey and confirm unto them, the said Robert Lenox. Jacob Stout and John Wells, the survivors and survivor of them, and the heirs and assigns of such survivor, the premises aforesaid, and 420 POST v. WEIL. FERST DEPARTMENT, OCTOBER TERM, 1876. subject to the aforesaid contract or agreement, upon certain truste in the said indenture expressed ; so nevertheless, that the pur- chasers of the premises be not answerable for, nor in any wise bound to see to the application of the purchase money, as by the said indenture, reference being had thereunto, may more fully appear." This last recital contains the only information of the existence or contents of the trust conveyance therein mentioned. The deed then proceeds to convey by apt words, the tract of land from Michael Hogan and wife, to Jacob Mark, for the expressed consideration of one dollar, reserving a condition in these words : " Provided always, and these premises are upon this express con- dition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected, or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind" The deed then further proceeds to convey the same tract of land from Lenox, Stout and Wells to the same Jacob Mark, for the expressed consideration of sixteen thousand dollars, " subject to and upon the condition hereinbefore expressed, unto the said Jacob Mark, his heirs and assigns," and contains, among other covenants, one on the part of Hogan, " that they, the said Michael Hogan, and Frances his wife, the said parties of the ji/rst part, or they, the said Robert Lenox, Jacob Stout and John Wells, the parties of the second part, some or one of them is, or are, lawfully seized of a good, sure, and undefeasible estate of inheritance," etc., and also a full covenant of warranty of Michael Hogan. It further appeared, that on the 21st of July, 1819, Lenox, Stout and Wells executed to Hogan an instrument reconveying whatever property conveyed to them by Hogan in trust, had not been sold or disposed of. The plaintiff's title was derived through this deed. Some evi- dence was offered and received, subject to exception, for the pur- pose of showing that the condition reserved by this deed had been extinguished by a release ; but the learned judge after argument, held it to be wholly incompetent, and refused to find any such release The learned judge held that the condition was a condition subse quent, and unless in some manner extinguished, was a blemish upon the title, which would justify the purchasers in refusing to accept it. He held, however, that treating the condition as reserved POST v. WEIL. 421 FIKST DEPARTMENT, OCTOBER TERM, 1876. to Hogan, the reservation was void, on the ground that he was a stranger to the estate at the time of the execution of the deed ; and treating it as reserved to Lenox, Stout and Wells, it was extin- guished by the reconveyance of July 21st, 1819. That conse- quently, quacumque via, the condition no longer existed. He therefore held the plaintiffs entitled to a specific perfor- mance, and judgment to that effect having been entered, this appeal was taken therefrom to he General Term. This statement of the facts established by the evidence, prepared by the appel- lant's counsel, is adopted as a correct exposition of the incidents and results of the trial, but the question which impresses itself in limine upon a clear comprehension of them and the evidence given is, whether a release of the condition was in fact executed, and it is a very important one. The plaintiffs have however taken no excep- tion to the finding of the learned justice against them on that sub- ject and his conclusion is binding. Whether there was one or not is discussed it is true upon the briefs submitted, but the question is not saved for review by exception, and it must be assumed that, the plaintiffs relied upon the other conclusions of which the judg- ment was predicated. In presenting the questions apparently involved, the counsel for the respective parties have not only dis- tinguished themselves by exhaustive argument, but have placed before us ample and able briefs. Their researches have riot been confined to the realm of conditions alone. Every thing bearing upon the subject directly and indirectly has been developed and discussed, and the court has been put in possession of all the learn- ing necessary to facilitate the determination of the issue between them. If any criticism be appropriate it is that they have done too much, but careful and astute counsel are always comprehen- sive and thorough, when important rights and intricate questions are involved. The subject to be considered will, nevertheless, be briefly dis- cussed. The views entertained about it can be stated with little elaboration. It must be said, at the start, that the condition imposed upon Marks was, in all respects, perfect to accomplish the object in view. It was provided for and assented to by him when the contract of sale was executed, and again when he received from Hogan and his trustees the deed conveying the land purchased 422 POST v. WEIL. FIRST DEPARTMENT, OCTOBER TERM, 1876. We are not advised, because the deed to them was not attainable, what the trust was which Hogan conferred upon his trustees, but that they fully performed it is evident from the subsequent convey ance by them to him. The condition was perfect in itself, and it was annexed to the transferred estate in form and substance, so as t-. burden it with the consequences of its violation. It is not necessary to discuss or explain the origin, force or effect of condi- tions, or the tendency of courts to prevent their operation upon slight grounds. We know that forfeitures are not in high repute, and we cannot feel that they should be. They are oppressive in character, if not ungenerous in design ; but, nevertheless, when they are legal and intact, they must receive due consideration, and their vitality must be declared. Assuming the condition, then, t<> be legal, and that no release of it was executed, the question in this controversy which seems controlling presents itself, and that is whether, by the conveyance to Marks the condition was reserved to Hogan or to the trustees. The learned justice presiding at Special Term thought that it was reserved to the latter. Was this conclusion correct ? The trustees uniting with Hogau in the deed to Marks were acting for Hogan, and in conveying the property were carrying out the agreement of sale, which he had made before they were invested with the powers conferred upon them by him. On examination of that instrument it will appear, that the grant is based upon the agreement of sale which is recited between Hogan and Marks, containing the condition which the former imposed upon the estate to be transferred. It will also appear that Hogan and wife convey to Marks, annexing the condition in proper form, but that the trustees convey it subject to and upon the condition thereinbefore expressed. The condition adopted by them is that asserted in accordance with the agreement of sale mentioned, and the grant already made by Hogan and wife, and in the same rela- tion to the contracting parties. The condition thereinbefore expressed is that imposed by Hogan for his benefit, and assented to and accorded him by Marks. There is no other reservation made by the trustees, and therefore none in their favor. It is Hogan's condition and not theirs, which is preserved. It has, there- fore, been aptly said, that "the contract to convey; the intermediate grant by Hogan to the trustees, and the final settlement of the POST v. WEIL. 423 FIRST DEPARTMENT, OCTOBER TERM, 1876. rights of all the parties by the tripartite deed, constitute, in the reason of the thing and in the judgment of law, one transaction. (See Osborn v. Phelps, 19 Conn., 63, 89 ; Jackson v. Dunsbagh, 1 Johns. Gas, 92 ; Stow v. Tifft, 15 Johns., 458 ; Church v. rown y 21 N. Y., 315, 330.) Together they form the assurance of this estate to Marks. " Hogan was not a stranger to it, and being in substance the original grantor to Marks, he was properly the reservee." The intent to reserve the condition to Hogan, seems to be clearly appa- rent therefore. The whole structure of the tripartite conveyance confirms this view. He was in fact the grantor, not a stranger, unit- ing in the conveyance to Marks, with his OM n trustees to whom he had conveyed the title for certain purposes, one of which was to carry out his agreement with Marks, but securing to him in so doing all its advantages and preserving for him the condition pro- vided by antecedent stipulation. Courts look to the end contem- plated by a deed, and not merely to the mode taken to obtain it. The intention will prevail if it can be ascertained and made domi- nant without violating some principle of law or equity that should be sustained. This rule of interpretation is adopted and made imperative in this State by statute. (Roe v. Tranmar, 2 Smith's Leading Cases [7th Am. ed.], 461, note; Jackson v. JDunsbagh, 1 Johns. Cases, 92 ; 1 R. S., 748, 2 ; Nicoll v. N. Y. and Erie R. R. Co., 12 N. Y., 128 ; Bridger v. Pierson, 45 N. Y., 604.) The princi- ple applies to conditions as well (See note to Dumpor's Case, 1 Smith's Leading Cases [6th Am. ed.], 128 ; Nicoll v. N. T. and Erie R. R. Co., supra?) There are other consideration which favor this view as to the intention of the grantors. It is true that we are to assume that all the estate of Hogan in the land passed from him to his trustees, but subject to the trust. "We are in ignorance as to what that trust was. The conveyancer, and it may be said all the parties in interest, deemed it necessary to unite Hogan and wife with the trustees in the conveyance to Mark, although all the estate he had, had been aliened to the trustees. It is not unreas- onable to suppose that this formality was predicated of the prop- osition, that by the then asserted law of the State, conditions such as that contained in the deed to Marks could only be reserved for the benefit of the grantor and his heirs, and that no other could take advantage of them. (Nicoll v. N. T. and Erie R. R. Co., 424 SHERIDAN v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. supra.) It was doubtless in the minds of the trustees and Hogan that the former after accomplishing the object of the grant from him, might, as they did in fact, transfer or convey to him, tht estate unappropriated and as the land conveyed to Marks if for- feited by condition broken might not be necessary for the full per- formance of the trust duties, the condition should be continued for the benefit of Hogan by the deed by which the grant was perfected to Marks. This was a cautious and proper view of the subject considered in all its relations present and future and with reference to the rules of law or the doubts that might arise. It seemed to be settled at least that before breach there was no assignable interest (12 N. Y., supra) and there being no breach a reconvey- ance might destroy the condition itself if it were reserved to the trustees and not to Hogan. Hence no doubt the character of the grant from Hogan in the tripartite deed, by which he warranted the title and assumed the responsibility which such a covenant imposes, and hence the full covenants by him made in that instrument. It follows from these views that the judgment pronounced below was erroneous and should be reversed. DANIELS, J., concurred. Present DAVIS, P. J., BEADY and DANIELS, JJ. Judgment reversed, new trial ordered, costs to abide event. FRANCIS SHERIDAN, APPELLANT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, RESPONDENTS. Witness credit due to uncontradicted statements of how affected by interest in suit. The rule, that where a disinterested witness testifies to the existence of a fact within his own knowledge, and nothing appears to discredit his statement, which is not inherently improbable, neither the court nor the jury can arbitrarily reject it, does not apply to the evidence of a person whose interest it is to establish the truth of what he swears to, as where he is to receive the fruits of the litigation, either partially or wholly, in case it may prove successful. (BRADY, J., dissenting.) The uncontradicted evidence of a party, or other interested witness, is not necessarily conclusive upon either the court or Uie jury. (BRADY, J , dissenting. ) SHERIDAN v. MAYOR. 425 FIRST DEPARTMENT, OCTOBER TERM, 1876. APPEAL from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial. Ch. P. Shaw, for the appellant. D. J. Dean, for the respondents. DANIELS, J. : The demands in suit arose out of the performance of work and materials used in repairing some, of the public buildings in the county of New York. The work was done and the materials sup- plied by Morgan Jones, as a plumber, and the action was brought by him for the recovery of the demands. During its pendency it was claimed that he assigned them to the plaintiff, who for that reason was substituted in his place as plaintiff in the action. It appeared by the evidence that a considerable portion of the work had been done, and the materials for it furnished by the assignor and persons in his employment, and that the bills had been rendered to the board of supervisors, while that body was in existence, and that they were audited and allowed by it. From the charge, it is very evident that the court took that view of the case, and as it appeared generally that work and materials of the description mentioned had been performed and famished and the bills had been audited by the board, that was held to be conclusive in favor of their allowance, unless there was evidence of positive fraud per- petrated by Jones upon the county through collusion with the board. The learned judge then added : " But I do not understand any such defense to be set up in the pleadings, or that there was any such attempt to defraud the county of New York by the auditing of these bills. If these repairs have not been done, if this work charged for in these bills has not been rendered or performed, if there was fraud in it, it appears to me that the proper officials should have investigated it under the circumstances and found out where the fraud was. But as I said before, I do not understand it to be set up in the answer that this was a fraudulent scheme to get money out of the public treasury." From these portions of the charge it is entirely clear, that the jury were not left at liberty to infer that HUN VOL. VIII. 54 426 SHERIDAN v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. any question of fraud in the performance of the work, or the allow- ance of the bills, was submitted to their consideration. The charge on the contrary was, that the proof of performance and the auditing of the bills were conclusive in the plain tift's favor, unless fraud should be shown, and that nothing of that kind had been alleged or proved. That was as favorable a statement of the law of the case as the plaintiff could require. And if improper evidence had been given, or the plaintiff had been required to prove more thaii he was obliged to on this subject, he could have been injured by neither after this unequivocal statement of the case in his favor. The court considered the case as having been made out by the evidence in all respects, except that of the right of the plaintiff to maintain the action. For it was stated to the jury that " the only real issue which appears to be raised by the pleadings and the proof is, whether this plaintiff is the real party in interest." The court then stated that a man could give his property away, and after doing it could not revoke the gift. But if it was a mere ruse or subterfuge and not a real transaction, the plaintiff would not be entitled to recover. The production of an assignment would ordi- narily be sufficient to support a transfer, but if the jury believed " from the evidence that the real party in interest in this suit is Morgan Jones, and that this is a sham transaction, then I think the plaintiff should be defeated in the action. If it is otherwise, if the plaintiff, the assignee, is the real party in interest, then I think, under the evidence, the plaintiff is entitled to recover." This, it will be perceived, was concisely and clearly presented aa the only point to be settled by the jury. The plaintiff claimed that it should not have been submitted to them, but that a verdict should be directed in his favor, and excepted to the refusal of the court so to hold. An exception was also taken in general terms to the refusal of the court to charge four different and several propo- sitions presented by one request in his favor. In the main they were charged, and for that reason this general exception was insufficient to present the point of variance between them and the instructions given. But if it could raise that question, there is no substantial ground presented for sustaining it. For the court did charge that the assignment was sufficient ordinarily to support a transfer. And that the assignor could give his claim away. But SHERIDAN v. MAYOR. 427 FIKST DEPARTMENT, OCTOBER TERM, 1876. it was not charged that there was no evidence to overcome it bona fide character, and that the testimony of the witnesses sus- tained it. In those respects the case was submitted to the jury and no exception wat made to the propriety of that course, unless the one taken in geneial terms was sufficient. And that, under the authorities, cannot be held to be the case. If the plaintiffs counsel had been dissatisfied with what was said by the court, he should have excepted explicitly to the submission of those facts to the jury. ( Walsh v. "Kelly, 40 JS". Y., 556 ; Requa, v. Gity of Rochester, 45 id., 130; Ayrault v. Pacific Bank, 47 id., 570.) And that he did not do. But if he had done that, perhaps no more would have been accomplished than was already secured by excepting to the refusal to direct a verdict in the plaintiff's favor. That presented the point as to the right of the plaintiff to recover as a matter of law. And it is maintained that that had been established by the evi- dence. The controversy was finally limited to the question, whether the demands had been actually transferred to the plaintiff, and all the evidence given in support of that was elicited from the plaintiff himself and his assignor. Where a disinterested wit- ness testifies to the existence of a fact as within his own knowledge, and nothing appears tending to discredit his statement, and it is not inherently improbable, neither the court nor the jury can arbi- trarily reject it. But the same rule does not apply to the evi- dence of a person whose interest it is to favor himself by what he may swear to. That circumstance alone is sufficient to subject his statement to suspicion. The rule of the common law was so strin- gent upon this subject that it rejected the evidence of parties and other interested witnesses, as unworthy of credit, because of the nn certainty of their statements being truthful. This has been abrogated by statute so far as to render them competent witnesses, leaving the question of their credit to be determined as an ordinary matter of fact in the case ; and under this change, where the interest may be a controlling one, whether the witness may be believed, notwithstanding its existence, must now be a matter of fact to be determined by the jury. The circumstance that the witness is to receive the fruits of the litigation, either partially or wholly, in case it may prove successful, will certainly, in some 428 SHERIDAN v. MAYOR. FIBST DEPARTMENT, OCTOBER TERM, 1876. instances, be sufficient to warrant the conclusion that the evidence given by him is not reliable. And that must be more particularly so when the proof of the fact in dispute is not possibly within the knowledge of the opposing party, and might, if true, be corroborated, as it could have been in this case, by further evidence under the control of the party insisting upon it. The conclusion that the uncontradicted evidence of a party or other interested witness is not necessarily controlling, received the direct sanction of the Court of Appeals in Elwood v. Western Union Telegraph Co. (45 N. Y., 549), for it was there said by Judge RAPALLO, who delivered the opinion of the court, that the rule as to the effect of the evidence given by witnesses " is subject to many qualifications. There may be such a degree of improba- bility in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. The general rules laid down in the books at a time when interest absolutely disqualified a witness, necessarily assumed that the witnesses were disinterested. That qualification must, in the present state of the law, be added." (Id., 553, 554.) Whether the assignment was ever delivered or not, or made bona fide, or as a mere sham, was for the jury to decide, as the only evidence in support of it was given by the plaintiff himself and the assignor. The court was, therefore, right in declining to direct a verdict and in refusing to charge that there was no evidence to overcome the presumption of the bona fide character of the assign- ment and that the testimony of the witnesses sustained it. If there was no delivery of the assignment, or it was a mere ruse or sham, the plaintiff was not the party in interest and he was not entitled to recover. The jury must have found one of these facts against the plaintiff for they could not otherwise have rendered a verdict for the defendant. Upon the cross-examination of the original plaintiff he wa8 asked whether he had not been sued by the defendant after he commenced this action, for $350,000. This was objected to in general terras and the court allowed the answer to be taken. The plaintiff's counsel excepted to the ruling and the witness answered that he had been. He was then asked whether it was not subse- SHERIDAN v. MAYOR. 429 FIRST DEPARTMENT, OCTOBER TERM, 1876. quent to that he made the assignment, and he answered that ill was. A like objection was taken to this question and the ruling of the court allowing it to be answered was excepted to. As it was claimed by the defendant that no actual or real assignment had been made of the demands in suit, this evidence seems to have been proper. It tended to render it probable that the transaction was only a colorable one made to avoid some possible effect of a recovery against the witness. The evidence was also proper to show that he was still a party in interest in the case, and that, if true, would tend to impair his credit as a witness. No sufficient reason has been found for a reversal of the judg ment, or of the order denying the motion, made for a new trial. Both should accordingly be affirmed. DAVIS, P. J. : The evidence showed that Jones had been sued by the defendant for $350,000, and afterwards assigned the claim for which this action was then pending, to the present plaintiff. That fact alone threw a shadow of suspicion upon the bona fides of the assignment, for it was claimed by the defendant that the assignment was made to escape the possible consequences of a recovery by the defend- ant, and the right that might arise to extinguish the demand in this action by set-off. The jury under such circumstances had a right to scrutinize the testimony of plaintiff touching the assign- ment, with strictness; and to discredit it if they believed the assignment to have been made in bad faith. To say that the jury must take the testimony of an interested party as true without qualification, because some other witness does not contradict it by direct testimony, is not only to trench on the province of the jury, but to dissipate all distinction between the testimony of disinter- ested witnesses, and those whose interest in a recovery extends to the whole subject-matter of the action. This would be against the policy of the common law, and no statute has yet gone the length of establishing such a rule. There is nothing improbable or incon- sistent with the nature of things in the conclusion reached by the jury. It requires some effort of credibility to believe that the assignment was made in good faith, upon a bona fide sale of the claim in litigation. Men are not prone to purchase law suits, and 430 SHERIDAN . MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. the jury might well have supposed that the present plaintiff, had consented to become a mere locum tenena of the real plaintiff, inas- much as he himself did not venture upon any corroboration of the alleged assignment. I must therefor concur with my brother DANIELS. BRADY, J. (dissenting) : There is no conflict of evidence, in this case, on the subject of the assignment of the claim of Jones to the plaintiff. The only way to discredit the testimony relating to it, is to reject it upon the presumption that it is false, to assume that the statement made by the witness is untrue. The courts have not gone so far as to allow this to be done. In the case in 45 New York, referred to by Justice DANIELS, there was evidence presumptive in character against the defendants, and the question was, whether the positive evidence given in their behalf overcame the presumption or prima facie evidence against them. That case did not present the question whether the jury could disregard evidence wholly nncontradicted. In Lomer v. Meeker (25 N. Y., 363), SMITH, J., said : " The posi- tive testimony of an unimpeached, uncontradicted witness, cannot be disregarded by court or jury arbitrarily or capriciously ; " and in the case in 45 New York, Justice RAPALLO states the rule to be, that such testimony should be credited and have the effect of over- coming a mere presumption. In this case there was nothing to overcome ; no presumption except such as might be created by, the evidence itself. There was nothing to gainsay it. It will also be perceived on a careful perusal of Judge RAPALLO'S opinion, that his deductions are based not on intrinsic, inherent improbability or falsity in the state- ment alone, but rest upon the presence of facts and circumstances disclosed by other evidence which create presumptions in conflict with, or contradictory of positive evidence given, and thus two elements, not one only, are considered. The circumstances disclosed by Sheridan in reference to the assignment may have been sus- picious, but many transactions which bear such an impress have been honest and so declared by courts of justice. When the assignor, Jones, was put upon the stand he was not interrogated by the MECHANICS & TRADERS' BANK v. DAKIN. 431 FIRST DEPARTMENT, OCTOBER TEKM, 1876. s' counsel in relation to the assignment ; no questions wert asked hii * on the subject. This left the statements of the other witnesses uncontradicted and the jury could not arbitrarily reject their testimony. There was no pretense of fraud against the claim itself and noth- ing to warrant the conclusion that the plaintiff had sworn falsely. I think a new trial should be granted. Judgment and order affirmed. THE MECHANICS AND TRADERS' BANK OF JER- SEY CITY, APPELLANT, v. HENRY DAKIN AND OTHERS, RESPONDENTS Conflicting excision* of Court and Commission of Appeals duty of trial court. Jpon an appe* froiv a judgment entered upon au order dismissing the com- plaint in thk ACtioix the Commission of Appeals granted a new trial, holding that upon th facts Droved the action could be maintained ; after the argu- ment, and befL.tS the t\;cision of this case, the Court of Appeals, in a case then before it, decided that -ich an action could not be maintained. Upon this case coming on for - new uial, held, that, as the Court of Appeals had decided that such an act-on could not be maintained, such decision became the law of the State, and as ,,.-ch binding upon this court and the parties to this action, and that a judgment v. itered upon an order dismissing the complaint herein wan proper, and shouK. e affirmed. (DAVIS, P. J., dissenting.) APPEAL from a 'udgment entered upon an order dismissing the x>mplaint herein. This action was commenced by the plaintiff to set aside as fraudulv. \t an assignment of a mortgage executed by the defendant Dakin to Jie defendant Jewell, and to subject the same to the lien of an attachment obtained by the plaintiff in another action against the defendant Dakin, in which he had recovered a judgment on which an execution had been issued. The Commission cf Appeals decided (51 N. T., 519), that the action could be main- tained, and reversed a jud^vient in favor of the defendant ordering a new trial. F. Shepard, for the appellant. Wm. H. AmouXj for the re&^ mdents. MECHANICS & TRADERS' BANK v. DAKIN. FIRST DEPARTMENT, OCTOBER TERM, 1876. DANIELS, J. : Upon the first trial of this action the complaint was dismissed for the reason that it was considered that such an action could not properly be maintained. The Commission of Appeals reversed the judgment entered on that dismissal, and held that the action could be maintained. (The Mechanics and Trader*? Bank of Jersey City v. Dakin, 51 N. Y., 519.) The case was argued before the decision of the case of Thurber v. Blanck (50 id., 80), which held the law to be the other way, and that such an action could not be main- tained. After both decisions had been made this action came on for trial under the reversal of the judgment, and the direction of a new trial by the Commission of Appeals, and upon that trial the complaint was again dismissed, for the reason that the decision made by the Court of Appeals was to be considered and followed as the controlling authority. The plaintiff has again appealed, claiming that the decision of the Commission of Appeals has settled the question of its rights to maintain the present action against the defendants, and that this decision must be followed notwithstand- ing the contrary has been held by the Court of Appeals. In sup- port of the appeal, authorities have been cited which maintain the position that a decision made in a case by one appellate tribunal will not be reconsidered in the same case by another having co-ordinate authority, when it may be pending upon another appeal, for the reason that the decision actually made will be held to be res a 1876. self or his family, or with an intent to injure or defraud any of hia creditors. (Sec. 5, ubi sup.) We think if the opposing creditors succeeded in establishing that this part of the affidavit indorsed upon the petition was not true, they thereby showed that the pro- ceedings of the prisoner were not just and fair within the meaning of the statute. Such was the construction of the statute in Gale v. Clark, by DALY, Ch. J. of the Common Pleas, in an opinion reported in The New York Weekly Digest (vol. 1, No. 10, p. 209), in which he held that, " by the act the applicant is required to swear that he has not parted with or made over any part of his property with intent to defraud any of his creditors." And he also held that the act of mort- gaging personal property to a brother of the petitioner, before the commencement of the action in which he was imprisoned, with intent to defraud creditors, was a proceeding not just and fair within the meaning of the statute, as construed by the court in the case of Watson (2 E. D. Smith, 429). It is not reasonable to suppose that the legislature would require an imprisoned debtor to take the oath above set forth, and at the same time provide for his discharge, notwithstanding it should be shown by an opposing creditor that such oath was false, because it was not also shown that he had at the time of the hearing, property which he then concealed, or because it was not shown that he had secreted his property with a view to the particular proceeding for his discharge. The intention was we think, as indicated by the form of the oath, to prevent the discharge of a debtor who has been guilty of the acts which he is required to negative by the oath prescribed by the statute ; and that it is enough to show that the proceedings on the part of the prisoner are not " just and fair," if the creditor establishes on the hearing that the debtor has disposed of or made over any part of his property with intent to injure or defraud any of his creditors, although such acts were committed before the commencement of the action in which he is imprisoned, provided they are shown also to be so far connected with the action as to be the grounds upon which the order for his imprisonment therein was based. This condition of things was shown by the appellants on the hear- ing of this case. They produced the affidavits upon which the order was made, and those made upon the hearing of the motion 440 DOLAN v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. to discharge the orders, which showed the grounds upon which the order was made, to wit, the disposing of the property with intent to defraud creditors , and they proved by the petitioner's own examination that he had made the disposition alleged in those papers, of his property, and showed other transactions relating thereto which we think the court below, if it had considered these acts as within the statute, would undoubtedly have held to have been fraudulent as to his creditors. The order of the court below was therefore erroneous and must be reversed, with costs of the appeal. DANIELS, J., concurred. Order reversed, with costs of appeal. MICHAEL DOLAN, PLAINTIFF, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, DEFENDANTS. Salary action for, by one unlawfully kept out of office liability of city for payment. On the last of December, 1872, the plaintiff, assistant clerk of one of the District Courts of New York, was removed from that office by the justice of the court and one Keeting appointed thereto, who thereafter occupied the office and discharged the duties thereof until March, 1874, when the plaintiff was restored oy virtue of a judgment of ouster obtained by him. The salary established by law was paid to Keeting from January, 1873, to December, 1873; that due for the months of December, 1873, and January and February, 1874, still remained in '.he hands of the defendant In an action by the plaintiff to recover the salary from January, 1873, to March, 1874, Jteld, that he was only entitled to recover so much thereof as remained in the hands of the defendant; that his remedy for so much as had been paid to Keeting was against the party who committed the wrong by removing and excluding him from the office. MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff. Ndson J. Waterbury, for the plaintiff. William G. Whitney, for the defendant. DOLAN v. MAYOR. 44j FIRST DEPARTMENT, OCTOBER TERM, 1876. DAVIS, P. J. : The facts of this case are as follows : The plaintiff on the 24th day of May, 1872, was appointed to the office of assistant clerk of the Sixth Judicial District Court of the city, by THADDEUS H. LANE, justice of said court. He entered upon and performed the duties of that office, up to and including the last day of December 1872. On that day, Justice LANE, removed the plaintiff from said office and appointed one Francis T. Keeting thereto. On the 1st day of January, 1873, Keeting entered upon, and continued to occupy said office, and perform the duties thereof, until March 1st, 1874. On the 1st day of March, 1874, the plaintiff again came in posses- sion of the office by virtue of a judgment of ouster obtained by him against said Keeting, in an action of quo warranto. The salary of the office was paid to Keeting, from the 1st day of January, 1873, to the first day of December, of that year. The salary for Decem- ber, 1873, and January and February, 1874, has not been paid to any person. The plaintiff, while Keeting was in possession, and performing the duties of the office, proffered his services to the clerk of the court from time to time which were refused. The salary of the office was fixed at $4,000 per annum, payable in monthly installments. It was admitted that the salary for the months of December, 1873, and January and February, 1874, with interest, amounted to $804.40. Upon these facts the defendants' counsel requested the court to direct a verdict in favor of the defendants. The court refused and the defendants' counsel duly excepted. He also requested that judgment be directed for the plaintiff for $804.40, which was refused and an exception duly taken. The court then directed the jury to render a verdict in favor of the plaintiff for the whole amount of the salary from Jan- uary, 1873, with interest, amounting to the sum of $3,664.40. Defendants' counsel excepted to such direction, and the court directed the exceptions to be heard at the General Term in the first instance, and in the mean time suspended the judgment. The question whether the plaintiff can recover for the period during which Keeting was in possession of the office, under the appointment made by Justice LANE, and performed its duties and received the salary, seems to be disposed of by the cases of Me Veary v. The Mayor (1 Hun [8 S. C. N. Y.], 35), and Smith v. HUN VOT, VIII. 56 442 DOLAN v. MAYOR. FDMT DEPABTMENT, OCTOBEB TKHM, 1876. The Mayor (37 N. Y., 518). In the case of The People ex rel. Dolan v. Lane (55 N. Y., 217), which was a proceeding by mandamus instituted by the present plaintiff, to compel Justice LANE to make certificate for payment of his salary as assistant clerk, the court (RAPALLO, J.), said : " The relator has been actually excluded from the office which he claimed, and another person installed therein, who has ever since discharged its duties. This has been done under color of law, and the legality of the removal of the relator, and of the appointment of the present incumbent, depends upon the cou- Btruction of a statute, framed in such ambiguous language, as to render its interpretation difficult. The Special and General Terms of the court below, have differed upon the question." This remark of the learned judge quite justifies us in holding that Keeting was in possession of the office under color of law, and must be regarded as an officer de facto. The exclusion of the plaintiff in this case, from the office, was not an act of the defendants nor of persons under their control, and it was not the duty of the defendants before paying the salary to Keeting, to test by legal proceedings the validity of his appointment. They found him in possession of the office and performing its duties by an appointment made under color of law ; and under the principles laid down in the casts above cited, they were justified in paying to him the salary per- taining to the office. The remedy of the plaintiff, so far as respects the salary thus paid, must be against the party who committed the wrong by his removal and exclusion. In respect to the three months for which no payment has been made by the city, a different rule may properly be applied. The title to the office has now been adjudicated by a direct proceeding for that purpose to which the defendants were parties. The pay- ment to Keeting now made, would be with notice that he was an usurper without legal title to the office, and it is clear that Keeting can maintain no proceeding against the city to enforce such pay- ment. We are of opinion, therefore, that the plaintiff is legally entitled to the salary remaining unpaid. The verdict should have been for the sum admitted on the trial to be due and unpaid for the months of December, January and February, amounting, with interest as admitted, to $804.40. The motion for new trial must therefore be granted, with coste DREW v. MAYOR. 443 FIRST DEPARTMENT, OCTOBER TERM, 1876. to abide event, unless plaintiff stipulate to reduce the verdict to $804.40, with costs ; in which case the motion will be denied with- out costs to either party. DANIELS, J., concurred. Motion for new trial granted with costs to abide event, unless plaintiff stipulate to reduce verdict to $804.40, with costs, in which case motion denied without costs to either party. PATRICK H. DREW, PLAINTIFF, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, DEFENDANTS. Receipt ignorance of its contents acts of recevptor inconsistent with knowledgt thereof evidence action for aLary. The plaintiff was formerly employed to sweep the markets in the city of New York, at sixty dollars per month. Subsequently, the comptroller reduced the pay to fifty dollars per mouth. This action was brought by the plaintiff to recover the difference, to which he claims to be entitled. Upon the trial, pay rolls signed by the plaintiff, by making his mark, were put in evidence, which stated that the wages were $600 per annum, and containing a receipt in full payment of all services rendered. Plaintiff offered to show that at the time of signing the pay rolls a suit was pending, brought by him to recover the additional ten dollars per month for services previously rendered, in order to show that he was not aware of, and did not assent to the statements contained in the pay rolls. Held, that the evidence was properly rejected. (BRADY, J., dissenting.) MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendants directed by the court. This action was brought to recover the amount of certain balances claimed to be due on account of the monthly wages of the plaintiff, as sweeper in the public markets of the city of New York. The rate of wages originally fixed by ordinance or resolution of defend- ants was sixty dollars per month. Plaintiff received sixty dollars per month for such services from defendants up to the time when the claim in this action begins, November 1, 1872, part of such amount, however, being collected by suit against the city, which would appear from the case to be the suit of which the plain 444 DREW v, MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. tiff, as hereinafter stated, offered to show the pendency. From that time and during all the time mentioned in the complaint, the plaintiff was paid only fifty dollars a month for the same services, and at the time of each payment he signed a pay roll containing a receipt in full in the following form : " Received from Andrew H. Green, comptroller, the sum hereunder placed opposite my name, in full payment for services rendered by me in the capacity and for the period embraced in this pay roll." At the foot of the receipt was stated : " Rate per an., $600. Amount, $50." Defendants denied that there was any more due plaintiff for such services than had been paid, and allege that the plaintiff agreed to take fifty dollars a month for such services. For the purpose of showing that the plaintiff did not agree to receive fifty dollars a month, plaintiff offered to prove that during the time covered by the complaint, he had a suit pending against the defendant to recover a like balance - of wages, accrued prior to November, 1872. The cause was tried at Supreme Court Circuit, and the court directed the jury to find a verdict for the defendants, to which direction the plaintiff then excepted. The court also directed that the exceptions be heard in the first instance at the General Term, and that judgment in the mean time be suspended. Henry Parsons, for the plaintiff. The legal right of plaintiff to the balance, ten dollars a month, existed at the end of each month, and the same could only be extinguished by payment or by a tech- nical release under seal. (Ryan v. Ward, 48 N. Y., 204: ; Seymour v. Minturn, 17 Johns., 169 ; Mechanics' Bank v. Hazard, 13 id., 353 ; Blum v. Hartman, 3 Daly, 47 ; McKnight v. Dunlop, 1 SeJd. [5 N. Y.], 537 ; Acker v. Phoenix, 4 Paige, 305 ; Cumber v. Wane, \ Smith's Leading Cases, p. 439, and notes.) A receipt in full of a sum less than the amount due, in no way discharges the right to recover the balance, and cannot be construed as a contract to accept a less sum thereafter : it is merely a declaration of a fact. (Ryan v. Ward, 48 N. Y., 204; McDougal v. Cooper, 31 id., 498 ; Hendricksen v. Beers, 6 Bosw., 639 ; 1 Greenl. Ev., 212 ; J)ederick v. Lemon, 9 Johns., 333; Williams v. Carrington, 1 Hilt, 515; Seymour v. Minturn, 17 Johns., 169; Mechanics' Bank v. Hazard, 13 id., 353 ; Cumber v. Wane, 1 Smith's Leading Cases* DREW v. MAYOit. 445 FIRST DEPARTMENT, OCTOBER TERM, 1876. p. 439, and notes ; Geary v. Page, 9 Bosw., 290.) The receipt can be explained or controverted. (Buswell v. Pioneer, 37 N. T., 312 ; Filkins v. Wayland, 24 id., 338 ; McDougal v. Cooper, 31 id., 498 ; Coon v. Knapp, 4 Seld., 402 ; Kellogg v. .Richards. 17 Wend., 116 ; Tobey v. Barber, 5 Johns., 68.) James C. Carter, for the defendants. DAVIS, P. J. : The court below committed no error in directing a verdict tor the defendant. The plaintiff proved no express contract to pay him sixty dollars per month for his services as street-sweeper. He proved that in 1866 the common council passed a resolution fixing the compensation of sweepers employed in the markets at sixty dollars per month, and that in 1867 the then comptroller, Couolly, directed him to go to work as such sweeper, and that he was paid, for a certain period, at the rate of sixty dollars per month. This showed an implied contract to pay him at that rate. But the plain- tiff further showed that he was subsequently paid at the rate of fifty dollars per month, and that, from month to mouth, for the whole period covered by his claim in this suit, he signed monthly receipts contained in the pay roll of the bureau of markets, in which his wages were set down at $600 per annum for his services as sweeper, and acknowledging the receipt from the comptroller of fifty dollars in full payment for services rendered by him in the capacity of sweeper for the period of the month embraced in each pay roll. This certainly overcame the presumption of a contract to pay sixty dollars for the same period, and showed, by strong inference at least, a contract for fifty dollars per month, or, rather, at $600 per annum, payable monthly. The plaintiff was an illiter- ate man, and signed the pay roll by making his mark, but he knew what amount of money he got, and that he gave a monthly receipt, and he made no demand for more, but went on working, and receiving that sum, and signing such receipts during the whole eeveral months covered by his complaint. His assent to the price and terms must be assumed, under such a state of facts, on the pro- duction of monthly receipts in full, each stating the rate of com- pensation per year, and the amount per month at such rate. The 446 DREW v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. court was clearly right in directing a verdict upon such a state oi facts. The only other question is upon an exception to the exclusion of evidence. The plaintiff offered to show that during the time covered by the complaint he had a suit pending against defendant to recover a like balance of wages accruing prior to November, 1872. This evidence was rightly rejected. It did not change the con- tents of the receipts given, nor tend to show that plaintiff acted under any mistake as to what he was doing in giving monthly receipts in full. On the contrary, it would tend to show that there was a dispute pending as to the amount of his claim, in full knowl- edge of which he gave and continued to sign and give the receipts in full at fifty dollars per month, and in that view he should be regarded as adjusting a disputed claim on the terms expressed in the pay roll and receipt. His own previous declaration that he demanded a balance for former services was not competent, and that was all the fact that he had a suit pending for such services tended to prove in his behalf. His declaration touching such service was not admissible to counteract the effect of his receipts, or overcome the presump- tions that legally arise from his subsequent transactions. There are, in my opinion, no grounds for a new trial, and the motion must be denied, with costs. DANIELS, J. : I think that the exclusion of the evidence offered, to show that plaintiff had another action pending for a similar claim accruing before November, 1872, was proper. If he made no agreement to receive sixty dollars a month he should have offered proof of that fact. The acceptance and receipt for the amount was strong evidence to the contrary. It was the adjustment of a disputed claim and for that reason binding. A new trial should be denied. BBADT, J. (dissenting): This action was brought to recover balances claimed to be due on account of the monthly wages of the plaintiff, as a sweeper 10 the public markets of the city of New York. BREW v. MAYOR, 447 FIBST DBPABTMBNT, OCTOBER TEBM, 1876. The common council, by resolution approved March 20th, 1866, declared the compensation of these sweepers to be at the rate of sixty dollars per month, and that sura was paid up to the 1st November, 1872, and until December 24, 1873, when fifty dollars only was paid, although no change had been made in the rate of compensation thus established by the resolution mentioned. On the day last mentioned, namely, the 24th December, 1873, the comptroller, by virtue of the authority conferred by section 28 of chapter 335 of the Laws of 1873, fixed the compensation at $600 per annum, fifty dollars per month. When the payment was made on the first of November, and at all payments subsequent thereto, the plaintiff signed a pay roll in which the rate per annum was stated to be $600, and which contained a statement that it was received in full payment for services rendered in the capacity and for the period embraced in the pay roll. The roll was signed by the plaintiff by making his mark, from which it is to be presumed that he could not write his name. It did not appear whether he could read or not, or whether he had in any way been advised ,>f the contents of the paper he signed beyond its being a receipt for the money given him. In answer to this evidence the plaintiff offered to prove, that during the time covered by the complaint, and at the time when the plaintiff was reappointed by Comptroller Green, in February, 1873, he had a suit pending against the defend- ant to recover a like balance of wages accruing prior to November, 1 872, and stated that such evidence was intended to show that plaintiff had not and did not agree to receive fifty dollars per month as a settle- ment of all claims against the city for sucn services, or to accept that sum in the future, which was objected to and it was excluded. The pay roll, as a receipt, was not conclusive upon the plaintiff. He had the right to controvert or explain it (Ryan v. Ward et al., 48 N. Y., 204) ; but it would seem to be more than a receipt because it contains a statement that the rate of compensation per annum is $600 and the plaintiff could, if he chose to do so, agree to render the services performed by him for that sum. He was unlettered however, and there is no proof on behalf of the defend- ants that he knew of the contents of the paper, as already suggested, beyond its statement as a receipt for money paid, while on the other hand the offer rejected tended to show that he did not intend 448 DREW v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. to execute a contract but a receipt. In either point of view it was error therefore, to reject the evidence thus offered. If a con- tract be incorporated in a receipt, especially when the person signing it is unlettered, it is or it should be incumbent on the party seeking to maintain it, to prove that it was so understood, other- wise undue advantage might be taken or frauds perpetrated, which the laws are careful to guard against. If the plaintiff had an action pending against the defendant to recover a like balance of wages prior to November, 1872, and at the time he was reappointed by Comptroller Green, it would be a strong circumstance, not only explanatory of the pay rolls as receipts, but in favor of the plain- tiff's ignorance of any contract contained in them to do his work for less than fifty dollars per month, which had been paid him, and which he was entitled to receive under the resolution mentioned. The right of the comptroller to make a more favorable contract for the city cannot be doubted, but the evidence that it was done should be of such strength as to warrant the inference that it was understand! ngly made, and if such an issue was presented all testi- mony having a legitimate bearing on the subject should have been admitted and the question determined. Whether, in fact, any such contract was made, and, indeed, whether it was contended on the part of the defendant to have been made, does not distinctly appear. The paper signed by the plaintiff was, in its general characteristics, a receipt only, and was apparently regarded as such on the trial, and if so, the explana- tory evidence could not be rejected, as already shown. A new trial must be therefore ordered, when the issues, what- ever they may be, can be fully examined and disposed of, because unless a different contract was made the plaintiff was clearly entitled to the compensation which the defendants declared by resolution should be his, and which was notice to all the employe* named or to be selected. New trial ordered, with costs to abide event. Motion denied, with costs. MoPARLIN v. BOYNTON. 449 Fraar DEPARTMENT, OCTOBBB TERM, 1876. MICHAEL McPARLIN AND OTHERS, RESPONDENTS, v. EBEN M. BOYNTOISr, APPELLANT. Warranty Inspection of goods before delivery effect of Penalty. Where parties stipulate that articles to be manufactured shall be of a particular kind and quality, and at the same time stipulate that they shall be tested by some person selected by the purchaser before delivery, to ascertain whether the;* are of the specified kind and quality, and such test is in fact made by him, and the goods are thereupon delivered and accepted, there is, in the absence of fraud and collusion between the manufacturer and the person selected to test the goods, no remedy by action upon the contract, even though the goods, or some portion of them, are subsequently ascertained not to be equal to the warranty. The plaintiff agreed, in writing, to manufacture for the defendant certain saws of the "best cut steel, hardened and tempered, carefully ground to three gauges thin on back and filed, set and warranted best in every particular. The saws to be tested by your man employed for the purpose of filing and finishing same." Held, that the defendant having appointed a man to test the saws in pursuance of the contract was bound by his decision, and could not thereafter set up a breach of the warranty as a defense to an action for the purchase-price. The contract further provided, that " all saws not taken by you in sixty days from completion of their manufacture we shall charge thereon interest at the rate of ten (10) per cent per annum." Held, that this meant that if, for any reason, defendant was not in readiness to receive the saws within sixty days, and their delivery was thereby postponed beyond that period, he should pay ten per cent for the period that might elapse between the expiration of sixty days from manufacture and the time of delivery. APPEAL from a judgment in favor of the plaintiff entered upon the report of a referee. Erastus New, for the appellant. A vendee, in an executory con tract of sale, with an express warranty as to the quality of the arti- cle contracted for, upon receipt of the article and subsequent dis- covery of a defect covered by the warranty, is not bound to return or offer to return the article, but may retain and use it, and have his remedy on the warranty. (Dounce v. Dow, 57 N. Y., 16 ; Park et al. v. Morris Axe, etc., Co., 54 id., 586 ; Day v. Pool, 52 id., 416 ; Foote v. Bentley, 44 id., 166 ; Muller v. Eno, 14 id., 598 ; Hoe v. Sanborn, 21 id., 553.) It seems to be the settled law in this HUN VOL. VIII. 57 450 McPARLIN y. BOYNTON. FIRST DEPARTMENT, OCTOBER TERM, 1876. State, that where there is an express warranty, and no fraud, the vendee cannot rescind and return the property, but his only remedy is on the warranty. (Park v. Morris Tool Co., 54 N. Y., 587; Day v. Pod, 52 id., 416 ; Reed v. Randall, 29 id., 358 ; Mutter v. Eno, 14 id., 597.) The rule which excepts a patent defect from the operation of a general warranty does not apply where the war- ranty is specific, nor where the article sold is not in existence, and cannot be seen by the vendee at the time of making the agreement of warranty. (Dounce v. Dow, 57 N. Y., 16 ; Park v. Morris Tool Co., 54 id., 586 ; Day v. Pool, 52 id., 416 ; Foote v. Bentley, 44 id., 166 ; Mutter v. Eno, 14 id., 598 ; Chatfield v. Frost, 3 K Y. S. C., 359 ; Birdseye v. Frost, 34 Barb., 367 ; Chitty on Cont, [llth Am. ed., vol. 1], 644 ; Benjamin on Sales, 535 ; Parsons on Cont, voL 1, 576, n. A.) C. Bainbridge Smith, for the respondents. DAVIS, P. J. : This is an action to recover a portion of the price agreed to be paid for a large number of saws manufactured by the plaintiffs for the defendant in the years 1867 and 1868. There is substantially HO dispute in the case as to the quantity manufactured, the price to be paid, nor as to the delivery of the saws, nor do we think there is any question left for our consideration after the findings of the referee upon the conflicting evidence touching any of the saws except those manufactured under an agreement in writing bearing date July 1st, 1867. That agreement is contained in a letter written by the plaintiff to the defendant, and is in the fol- lowing words : July 1st, 1867. E. M. BOYNTON, Esq. : DEAB SIB. We enter your order of this date for 1006 cross-cut saws of your patent, viz. : 1006, 100 6^, 4007, 100 7^, 6 S feet, at seventy cents per foot to 7 feet, all over 7 feet to 8 feet, 5 per cent advance. Boxing and dray added, payable within sixty days of each invoice delivered at Hamilton, O., then shipped as directed by you. These saws are to be made of Wm. Jessop & Son's best cross-cut steel, hardened and tempered, carefully ground McPARLIN v. BOYNTON. 451 FIRST DEPARTMENT, OCTOBER TERM, 1876. tu three gauges thin on back, and filed, set, and warranted best in every particular. The saws to be tested by your man employed for the purpose of filing and finishing same, we to furnish room and bench for his use at our shop free, you to furnish him the necessary tools for his work, and in case of your absence will act for you in the payment of his wages from any moneys you may send us at the rate of $2.50 per day. And all saws not taken by you in sixty days from completion of their manufacture we shall charge thereon interest at the rate of ten per cent per annum. Truly yours, WOODROUGH & MoPARLIN. The plaintiffs manufactured and delivered to the defendant the number of saws of the sizes and kinds required by this contract. The evidence tends to show and there can be little doubt that a very considerable number of the saws so manufactured turned out to be badly tempered, and in consequence soft and useless for the purpose for which they were intended. Many of them were after- wards retempered by the plaintiffs at the expense of the parties from whom they were received, or of defendant, and many others remained on hand undisposed of which were not retempered. The question as to the kind and quality of the steel of which these saws were manufactured, on which the evidence was conflicting but decidedly preponderating in favor of the plaintiffs, was disposed of favorably to plaintiffs, and as we think properly, by the referee. There can be no doubt that the contract contains an express war- ranty of the saws, upon which the defendant would in the absence of other provisions in the contract be entitled to a recoupment of damages in this action. The warranty is in these words : " These saws are to be made of William Jessop & Son's best cross-cut steel, hardened and tempered carefully, ground to three gauges thin on back, and filed, set, and warranted best in every particular." It is claimed by the defendant that this warranty^ was broken in three particulars : First, as to the kind of steel used ; second, as to the hardening and tempering of the saws ; and, third, as to their being ground to three gauges thin on the back. The first of these was disposed of by the finding of the referee above referred to. None of them however, can be disposed of by 452 McPARLIN v. BOYNTON. FIBST DEPARTMENT, OCTOBER TERM, 1876. the mere fact that the defendant received and sold or used the saws. He had the right to receive them relying upon the warranty, and relying upon hie remedy for its breach it' it turned out that the warranty was broken. (Dounce v. Dow, 57 N. Y., 16 ; Parks v. Morris Ax Go, 54 id., 586 ; Day v. Pool, 52 id., 416 ; and cases cited by these authorities.) Nor can the plaintiffs escape responsibility on the ground that the defect in temper and in thickness were easily discoverable by experienced persons by the use of proper instruments or appliances. These were not of the character of patent defects to which warranties are not applicable. The defendant is therefore entitled to a new trial in this case unless he is precluded from asserting the warranty by certain other provisions of the contract. Immediately following the warranty above quoted, the contract contains these words : " The saws to be tested by your man employed for the purpose of filing and finish- ing same, we to furnish a room and bench for his use at our shop, free, you to furnish him the necessary tools for his work." This raises the question whether the parties have not, by the express terms of the contract, provided a means for determining before delivery whether or not the saws to be manufactured were of the kind required by the contract in conformity to the warranty. It was very clearly in their power to make such an arrangement ; and where parties stipulate that articles to be manufactured shall be of a particular kind and quality, and at the same time stipulate that they shall be tested by some person selected by the purchaser before deliver} 7 to ascertain whether they are of the specified kind and quality, and such test is in fact made by him, and the goods are thereupon delivered and accepted, no remedy by action can be had upon the contract, although the goods, or some portion of them, are subsequently ascertained not to be equal to the warranty. In the absence of fraud and of collusion between the manufacturer and the person selected, his decision upon the test that the articles are such as the contract requires, is conclusive against the purchaser who subsequently receives them. The evidence shows that the defendant sent to the shop of the plaintiffs a person of the name of Carlisle, to act on his behalf under the contract ; that he was furnished with a room and bench for his use in the shop of plain- tiffs, and such tools as were used by him were furnished by defend McPARLIN v. BOYNTON. 453 FIRST DEPARTMENT, OCTOBER TERM, 1876. ant ; that he remained while the saws were being manufactured, and that they were sent to his room where he applied or was at liberty to apply such tests as he chose in respect to them. There is conflicting evidence in the case as to whether or not he had access to the tempering room of the plaintiffs, and gave directions in respect to the tempering of the saws, but on that question the evi- dence strongly tends to show that he had the fullest opportunities, and did give directions in relation to the tempering, and that the eaws all passed through his hands as they were manufactured, and that some of them were pronounced by him too soft and were returned to the tempering room and again brought to his room for sucL further process of tiling and finishing as he chose to apply. Under this state of facts, we think the referee was right in holding that the delivery of the saws and their acceptance by the plaintiffs, after the action of Carlisle in respect thereto, was a complete performance of the contract, and that no recoupment could be hud under the warranty. It would seem, from some of the testimony given, that the defendant supposed that all the duty Carlisle was to perform under the contract related to filing and finishing the saws as they were delivered, from time to time, into his hands ; but the contract was in writing. The language is plain, and its construction must be determined by what the writing contains. It says, " the saws are to be tested by your man employed for the purpose of filing and finish- ing same." All that is said in respect to filing and finishing has only the effect of indicating that the man employed for that purpose shall be the person who is to test the saws. For that person the plain- tiffs were bound to furnish a room and bench in their shop free of charge, the defendant to furnish him necessary tools for his work, which work embraces both the testing, and the filing and finishing of the saws. We think the language is hardly capable of another construction. The defendant had the privilege of selecting any person he chose. It was both his interest and duty to select an entirely competent and skillful man. If he tailed to do that it was his misfortune or neglect. There can be no doubt that the defend- ant was not bound to take any of the saws rejected by the person he employed for not coming up to the requirements of the contract in any respect. It is more than probable that the defendant selected an incompetent man, but as all the saws, as they were made, were 454 McPARLIN v. BOYNTON. FIRST DEPARTMENT, OCTOBER TERM, 1876. delivered into his bauds and passed upon by him, and subsequently delivered to the defendant, no remedy remained for lack of coin pliance with the contract, unless on some ground of fraud, which is not alleged. The result of this view of the contract is, that the conclusion of the referee as to the liability of the defendant for the saws manufactured is correct ; and his finding that the defects were readily discoverable by the use of certain appliances, becomes immaterial. The referee has found a balance due from the defendant to the plaintiff of $1,705.24, with interest thereon at the rate of ten per cent from the 17th of November, 1868. He bases the right to recover interest at the rate of ten per cent upon this clause of the contract : " And all the saws not taken by you in sixty days from completion of their manufacture, we shall charge thereon interest at the rate of ten per cent per annum." The previous clause of the contract provides that the price of the saws, adding boxing and drayage, shall be payable within sixty days of each invoice delivered at Hamilton, Ohio. The clause imposing interest at ten per cent applies, in express terms, only to saws not taken by the defendant in sixty days from the completion of their manufacture. The evi- dence shows that all the saws were taken by the defendant within sixty days from the completion of their manufacture. The clause is somewhat difficult of construction, but as ten per cent is imposed in some sort as a penalty, we are inclined to think it should be strictly construed in favor of the defendant, and held to mean, that if, for any reason, he was not in readiness to receive the saws within sixty days, and their delivery was thereby postponed beyond that period so that the sixty days' time for payment would not com- mence to run by reason of non-delivery, he should pay ten per cent for the period that might elapse between the expiration of sixty days from manufacture and the time of delivery. Under that con- struction the case shows nothing to which the penalty of ten per cent could be applied. The rate of interest should, therefore, have been, in the absence of proof of the legal rate in Ohio, in accord- ance with the legal rate of our own State. (Leavenworth v. Bro. MOTT. FIBOT DEPARTMENT, OCTOBKU TKKM, 1876. Dederer, 18 N. Y., 265; S. C., 22 id., 450; Maxon \ Scott, ( App., not reported. } n If we are right iu the position that, u; the facts in this case, a presumption arises that the debt was created in or about the carrying on of a trade or business of the wife, or for the benefit of her estate, the fact that it was made by the authorized agent of the wife makes no difference with her liability. The referee has found that the agent was authorized, and the power of attorney given to him by the defendant was broad enough in its language to justify such finding. It empowered him to make, sign, indorse and accept all checks, notes, drafts and bills of exchange for her and in her name, which language we think is broad enough to include the postdated check in question. It follows that the judgment appealed from should be affirmed, ieith costs. BRADY and DANIELS, JJ., concurred. Judgment affirmed. HENRY A. MOTT AND OTHERS v. THADDEUS P. MOTT AND OTHERS. Basement union of senient and dominant estates grant of lot on street fee to center, wfan passes. Where a right of way over a private street or lane exists in favor of the several lots fronting thereon, and all such lots are subsequently acquired by one person, the easement is thereby extinguished. Where the owner of land conveyed lots fronting on a private lane, the deed describing them as running "to the side of a lane twenty feet wide, thence along the same," and then providing "and also the privilege of using from tune to time and at all tunes hereafter * * * the said lane," the grantee to pay his proportional part of the expenses of keeping the lane in repair, held, that there was no intention in the grantor to reserve to himself the lane, and that one acquiring title to all the lots fronting thereon became the ownei thereof in fee, and was entitled to devote the same to any use he might thinb proper. APPEAL by Frederick H. Cossitt, from an order of the Special Term requiring him to complete his purchase of certain lots. MOTT v. MoTT. 475 FIRST DEPARTMENT, OCTOBEB TEBM, 1876. Under the decree of this court in the main cause, the lands whereof Dr. Valentine Mott died seized were sold, at public auc- tion, in April and May, 1874, by Henry A. Mott and John Chet- wood, executors of his will, and James McQuade, united with them as referee, sales being made by city lot numbers as shown upon maps, published and circulated at the sale. The petitioner, Cossitt, purchased several parcels. The aggre- gate of the several purchases was $93,050, and Mr. Cossitt paid ten per cent thereof, and the auction fees, and obtained one receipt therefor, and signed one memorandum at the foot of the terms of sale, which however expressed that the lots were sold in sepa- rate parcels. He refused to pay the remainder of the purchase money and complete his purchases, claiming that Dr. Mott was not seized of the "fee simple to a strip of land twenty feet in width," stated to be " a lane or right of way, originally laid out by the heirs of Charles Ward Apthorpe, deceased," and not to have been conveyed in fee simple by the deeds executed by them. And he stated as the objection respecting the lots numbers thirteen and four, that there was no title to these lots. No other defect or objection was alleged by him, but it was claimed that his purchases were of an entirety, and that the objections alleged against the title of the lots covered by the lane, and of numbers four and thirteen, were sufficient to relieve him from the purchases of all the parcels. The lane in question crossed or touched the lots numbers seven and eight, and those lots only. And upon the same map the lots numbers four and thirteen, also objected to, appear as sections of the westerly half of Bloomingdale road. The sale map, a copy of which was annexed to the answer, did not exhibit the twenty foot lane. By deeds executed to him by Samuel Oakley in 1833, and by Thomas D. Carpenter in 1834, it is conceded that Dr. Mott acquired perfect title in fee simple to all the lands adjoining the lane throughout its extent. And thenceforward he was in undisputed possession of these lands, and also exercised sole dominion and con- trol over the lane itself, keeping it in fence and repair, using it at pleasure for pasturage and other purposes, maintaining locked gates across it, extending it through his own land to the river, and col- lecting tolls for business use of it. 476 MOTT v. MOTT. FIRST DEPARTMENT, OCTOBER TERM, 1876. The purchaser claimed that Mott never acquired the title in fee simple to the strip of land twenty feet in width, running from east to west across the premises purchased by him, and in proof thereof, produced the deeds from the heirs of the original owner, Charles Apthorpe, to the grantor of Mott. In one deed made in 1799, the boundaries of the premises conveyed, so far as they affect this ques- tion, are as follows : " Thence south twenty -eight degrees thirty minutes west, nine chains seventy-five links to the side of a lane twenty feet wide ; thence along the same south fifty-eight degrees east, ten chains sixty links to the Bloomingdale road ; thence along the said road north twenty-eight degrees thirty-nine minutes east, nine chains seventy-five links to the place of beginning." This deed also contains the following provisions : "And also the privilege of using, from time to time, and all times forever here- after, with servants, laborers, horses, oxen, cattle, wagons, carts and carriages, as well the said lane leading to Striker's as the lane of twenty feet wide on the said map particularly delineated ; the said David M. Clarkson, his heirs and assigns, always bearing and pay- ing in common with the heirs of the said Charles Ward Apthorpe, and their heirs and assigns, his, her or their proportional part of the expenses of keeping the said lane leading to Striker's and the said lane of twenty feet in proper repair." And in the second deed the boundaries of the premises, so far as they affect this lane, are as follows: "Thence along the same (the Bloomingdale road) north thirty-two degrees east, five chains forty- two links to a lane on the south side of Clarkson's land ; thence north fifty-five degrees west, twenty-three chains forty links to Hudson river ; thence," etc. Charles Jones, for the appellant. i C. A. Hand, for the respondent. BRADY, J. : The testator, Valentine Mott, was, during his life, the owner of the land on both sides of the lane from beginning to end, which forms part of some of the lots bought by the petitioner, and had been in possession thereof as owner for more than thirty years prior to MOTT v. MOTT. 477 FIRST DEPARTMENT, OCTOBER TERM, 1876. hi death. The lane was an easement created for adjoining owners, and as between them it could not be changed in its character or design. When the several owners yielded their estates bordering upon it, they centered in one person ; the servierit character was subject to his will. He might use it or not, for the purpose orig- inally designed, as he thought proper. It was not a public but a private road or lane, leading from the Bloomingdale road to the Apthorpe or De Peyster mansion, and when the earlier grantors regarded and projected it by provisions in the deed, it was not to reserve in themselves, or their heirs, any estate in it, but to secure it as a necessary way or easement for the benefit of the owners along its line. Thu is evidenced by the provision contained in the deed from Charles Apthorpe to Clarkson, to the effect that the latter would always bear and pay, in common with the former and his heirs and assigvu, the expense of keeping the lane in proper repair. There can be no doubt that when property thus conveyed is united in one person, even though several parcels are described as commencing at or running to the side of the private road, or lane, the fee to the center of the way passes from the grantors. (Bissell v. N. T. C. R. R. Co., 23 N. Y., 61 ; Perrin v. N. T. C. R. R. Co., 36 id., 120; Corning v. Gould, 16 Wend., 531.) To hold otherwise would, in effect, be to declare that a man could not close a private road or lane running through his land, although it was made with express reference to and for such land, and although he has secured by grant the use of it in perpetuity, and although it formed a part of the estate to which it was an incident. The original grantors could not claim any interest in the bed of the land or private road, because it is evident that the grants by them were not intended to withhold the absolute title to the center vf the lane or road, except so far as to secure the use of its bed for the purpose mentioned, as long as the several owners required it. Questions of boundary are to be determined by the palpable inten- tion of the parties as it appears from all the circumstances. (Perrin v. N. Y. C. R. R. Co., supra.} The sale of the adjoining land, by the several owners, was a sur- render of the right and an abandonment of the use of the lane to the grantee, to be employed by him or not as he pleased. (Bissell 478 MOTT v. MOTT. FIRST DEPARTMENT, OCTOBER TERM, 18T6. T. N. T. C. R. R. t supra.) The purchase of the whole land adjoining made the purchaser muster of the whole tract. He became the owner of the whole of the dominant estate to which the servitude or easement was due. (Case supra.) He closed the lane and used it as a pasture ground, and rented the use of it It a right of way be from the close of A. to the close of B., and both closes be united in the same person, the right of way as well as all other subordinate rights and easements, is extinguished by unity of possession. (3 Kent, 423 [marginal paging].) In the case of Bissell v. N. T. G. R. R. Co., in which it appeared that the grantor had laid out a plot of land in lots and a street, which was used as access to them, the lots being bounded on the street, Justice MASON said : "There is no more reason, it seems to me, to infer an intention in the grantor to withhold his interest in or title to the land covered by the street, after parting with all his right and title to the adjoining land, than there is in the case of a deed bounded by a public highway." Indeed the object of the reserva- tion considered in this case with regard to the intention of the grantors gathered from the surrounding circumstances, appears to have been only to secure the use of the lane for the owners on its line so long as it was necessary for or demanded by them, and it is not well to be questioned that there is in* uistinction to be drawn between the lane under consideration, and the street in the case of Bitsell v. N. Y. C. R. R. Co., which was used for a purpose similar to that which caused the laying out of the lane. The object secured by it has ceased, both as a convenience and necessity, and there is neither of these elements in favor of the continuance of it. Why should the grantors, having parted with all the adjoining land, be permitted now to claim a fee in the bed of the land, against the undoubted intention of the grants to part from all interest in it when they sold the adjoining land ? Is it not clear that, as between themselves and their grantees, they intended to convey to the center of the lane, as declared in Bissell v. N. Y. C. R. R. Co. f These interrogatories seem to admit of but one answer. The objection discussed is therefore of no avail to the petitioner. The further objection to the title to lots four and thirteen, forming part of the Bloomingdale road, proves valueless, because the DUNPHY u. MAYOR. 479 FIBST DEPARTMENT, OCTOBEB TERM, 1876. respondent did not sell any more than the right, title and interest of the testator and his representatives in them. They claimed an interest in them under a conveyance and the provision of the act of 1867 (chap. 697), granting the fee of the road to adjoining owners, and it was that interest which the petitioner bought. He was bound by his bid. If he desired to know what the interest was, the information should have been demanded at the sale. Having chosen to buy, without that or an examination for himself, he takes the consequences. It is manifest that the order made at Special Term was correct, and it must be affirmed. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed. JAMES DUNPHY, RESPONDENT, v. THE MAYOR, Em, OF THE CITY OF NEW YORK, APPELLANTS. Board of supervisors of New York power to appoint deputy clerk appropriation for payment of. The board of supervisors of the county of New York appointed, in 1860, a deputy to their clerk, and in 1864 fixed his salary at $4,000 per year, appropriations for the payment of which were made by the legislature in each year from 1860 to 1870. Chapter 190 of 1870, creating a new board of supervisors, provided that all officers and subordinates of the existing board holding office or place therein, should continue in their respective offices and places, subject to removal for misconduct and authorized the new board to fill vacancies. Held, that although there was no statute authorizing the old board to appoint a deputy clerk, yet the acts of the legislature annually appropriating money for the payment of hia salary, and the act of 1870, conferred such authority upon the new board. The plaintiff was appointed first deputy clerk of the board in January, 1872, and continued to perform the duties of his office until May, 1873. No appropria- tion for the payment of his salary was made by the board of apportionment, crested by chapter 588 of 1871, for the year 1872 and the first four months of 1878. In this action, brought by the plaintiff to recover the amount of his alary for this period, the defendant insisted that the absence of an appropria- tion for its payment relieved it from all liability under section 5 of chapter 588 of 1871, providing that no liability should be incurred hy the officers of th 480 DUNPHY v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. county, for any purpose whatsoever, exceeding the amount of the appropriation made for that purpose. Held, that as the duration of the plaintiffs office was not prescribed by law, and as the board had power to terminate the same, its action in continuing to employ him, after it was known that no appropriation had been made wherewith to pay his salary, was a violation of section 5 of chapter 588 of 1871, and that the defendant was not liable for the debt so incurred. (BRADY, J., dissenting.) APPEAL from a judgment in favor of the plaintiff, entered on the trial of this action by the court, without a jury, in an action brought by plaintiff to recover his salary as first deputy clerk to the board of supervisors of the county of New York. John H. Strahan, for the respondent. D. J. Dean, for the appellants. DAVIS, P. J. : The plaintiff was appointed to the office of first deputy clerk of the board of supervisors, by a resolution of that board, adopted on the 28th of December, 1871, to take effect on the 1st of January, 1872. He continued to perform the duties of the office until the 1st of May, 1873. The salary was fixed by the resolution of the board of supervisors, adopted in 1864, at $4,000 per annum, and that sura had been paid to the plaintiff's predecessor up to the date of the plaintiff's appointment. The salary was payable in monthly installments, but nothing has been paid to the plaintiff. Two points are made by the appellant. 1. That the supervisors were not authorized by law to employ a deputy clerk ; and, 2. That the supervisors had no power to incur any expense for the salary of the deputy clerk in the years 1872 and 1873, because no money was appropriated for the salary of such officer during said years. As to the first of these points, it may be said that under the provisions of the Revised Statutes, the board of supervisors had power only to appoint the clerk, and none to appoint deputy or assistant clerks. It appears, however, that prior to 1864, and as early perhaps as 1860, the board of supervisors appointed a deputy clerk, and that in 1864 the board fixed his salary, by resolution, at $4,000 per annum, and continued such appoint- ment from year to year, down to and including the time at which the respondent was appointed. Appropriations to pay the salary DUNPHY v. MAYOR. 481 FIKST DEPARTMENT, OCTOBER TERM, 1876. ot such deputy were made annually by the legislature for a period of ten years, as appears by the Session Laws of such years, from 1860 to 1870, both inclusive. (Chap. 509, Laws of 1860; chap. 240, Laws of 1861; chap. 452, Laws of 1862; chap. 108, Laws of 1863 ; chap. 404, Laws of 1864 ; chap. 605, Laws of 1865 ; chap. 837, Laws of 1866; chap. 806, Laws of 1867; chap. 854, Laws of 1868 ; chap. 875, Laws of 1869, and chap. 382, Laws of 1870.) By chapter 190 of the Laws of 1870, the legislature created for the county of New York a new board of supervisors, and by section 10 of that chapter declared that " all officers and subordinates of the existing board of supervisors, which would be superseded by the board constituted by this act, and which may severally be holding any office or place in the superseded board, shall continue in their respective offices and places, subject to removal for misconduct. Whenever any vacancy occurs in said transferred and continued office and place, it shall be filled by the board of supervisors hereby constituted." These various statutes, by necessary implication, we think, must be held to have conferred upon the board of supervisors the power to appoint a deputy clerk. A vacancy occurred in that office by the resignation of the incumbent on the 28th of December, 1871 ; to fill which vacancy the respondent was appointed. We are of opinion that the appointment was legal. In relation to the second point, it is to be observed that the com- pensation of the deputy clerk was not one fixed by law, but was wholly dependent upon the resolution passed by the board of super- visors for its amount ; and for its payment upon appropriations to be made from year to year by the legislature or other competent authority. No appropriation for the payment of the salary of the deputy clerk of the board of supervisors was made by the legislature of the State for the year 1872 or the year 1873. By chapter 583 of the Laws of 1871, the board of apportionment of the city of New Tt ork was authorized to determine the amount to be expended for each object of public expense, and to determine the amount to be raised by taxes, and to distribute the same amongst the departments or officials authorized to incur debts. It was clearly the intention of the legislature by that act, that the amount of salaries should be HUN VOL. VIII. 61 482 DUNPHY v. MAYOR. FIBST DEPARTMENT, OCTOBER TERM, 1876. controlled and limited by the board of apportionment, in so far a> they were not fixed by statutes regulating the salaries of office elected by the people, or whose appointment was not within tlu discretion of local bodies or officers. Section 5 of chapter 583 of the Laws of 1871, provided that m- liability, for any purpose whatsoever, should be incurred by the officers of the county of New York exceeding the amount of the appropriation made for that purpose. It appears that the board of apportionment appropriated for the clerk of the board of super visors for the year 1872 the sum of $5,000, which was the amount of his salary as fixed by the resolution of 1864, and that they made an appropriation for the first four months of 1873, for such clerk, at the rate of $5,000 per annum. No appropriation was made in either year for the payment of the deputy clerk. Nothing was paid to the respondent, and as his salary was payable monthly he must be deemed to have had notice, at least as early as the expiration of the first month of the year 1872, and at the expira- tion of each successive month during the period he held the office, that no appropriation to pay the salary of his office had been made, and that payment was refused to him for that reason. He con- tinued, however, to hold the office and perform its duties taking the chances of being able to enforce payment of his salary, notwith- standing the board of apportionment had made no appropriation for such purpose. It appears very clearly that the amount appro- priated by that body, authorized by law to perform that function, for the payment of clerical duties in the board of supervisors was fixed and limited at $5,000, and the question is simply, whether the board of supervisors had power to incur any liability beyond that sum, by continuing in office a deputy whose compensation was not and could not be met out of the sum so fixed by the board of appor- tionment. To us it seems clear that their act in so doing was the incurring of a liability exceeding the amount of the appropriation made for the purpose for which it was incurred ; or, in short, that it was doing an act necessarily inhibited by the provisions of jaw above referred to. It is supposed by the learned counsel for the respondent that this question has been disposed of by the courts in Quinn v. The Mayor (63 Barb., 595) ; Kessler v. The Mayor : The People ess rel. Monheimer v. Green; Monheirner v. The DUN PHY v. MAYOR. 483 FIRST DEPARTMENT, OCTOBER TERM, 1876. Mayor, and Macgowan v. The Mayor, and the learned court below appears to have been controlled by the decision of the Court of Appeals in Costello v. The Mayor and Kessler v. The Mayor (not yet reported). We think these cases are clearly distinguishable from the present case in this important particular: they were for the recovery of salaries or fees fixed by statute, and which could not be changed by the board of apportionment because not within their jurisdiction. They were liabilities not incurred or to be incurred by the action of any of the officers of the county, but by the necessary operation of law over which such officers had no control. In this case the liability was the result of an express employment or appointment by the board of supervisors for the performance of duties, for which another officer was provided by statute. Such appointment was discretionary and not compulsory. The duration of the office was neither prescribed by the Constitu- tion nor declared by law, and the office was, therefore, held by express provision of statute " during the pleasure of the authority making the appointment." (1 Rev. Stat, p. 107, 8 [Edm. ed.].) The power to terminate the office rested with the board of supervisors, and the incurring of the liability for the salary, after it was known to that body that no appropriation therefor was made, was a vol- untary and unwarranted violation of the restrictions imposed upon them by the act of 1871. It was an expense within their control, and in the absence of an appropriation, the law devolved upon them the plain duty to stop it ; and for courts to adjudge a recovery is to sanction a violation of law. If the respondent would be entitled to recover for services up to the time when the board of apportionment refused to make any appropriation for such services, it seems to us there can be no greater recovery unless we hold that the restrictive statute is not applicable to this case, or that the board of supervisors had power to override its provisions, notwithstanding the clearly expressed will of the legislature. "We think there should be a new trial, with costs to abide the event. BBADT, J. (dissenting) : The office held by the plaintiff was one in existence at the time of the passage of the act of 1871 (chap. 583), and no liability was 484 FELLOWS v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. created or incurred by continuing him in his position made legal by acts of the legislature. The liability already existed and it wag the duty of the board of apportionment to provide for the salary. The omission to do so should not prejudice him. If the city prevail herein on such a theory it takes advantage of its own wrong. It was properly said by DANIELS, J., when an application was made by the plaintiff for a mandamus: "So much of the salaries as would accrue and become payable in any one year ought, under the provisions of the law relating to that year, to have been included in the estimate made for its expenses. That was plainly the duty of the officials required to make those esti- mates." And further : " It was to supply the omission arising out of that neglect that the present proceedings were instituted.' If the office held by the plaintiff had been created after the esti- mates were made it would present a case contemplated by the act of 1871. I think the judgment should be affirmed. Present DAVIS, P. J., BRADY and DANIELS, JJ. Judgment reversed, new trial ordered, costs to abide the event. JOHN R. FELLOWS, RESPONDENT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, APPELLANTS. Atsutanl district attorney of New York State officer ialary of. The assistant district attorney of the county of New York is an officer of the State government, and not of that county, and the board of apportionment created by chapter 583 of 1871, "to regulate all salaries of officers and employes of the city and county governments " had no power to reduce his salary. Where a provision establishing the salary of the assistant district attorney of the county of New York was contained in an act entitled "An act to make further provision for the government of the county of New York," held, that the pro- vision was local as it affected the salary of the officers in a particular county imly, yet that the title of the act sufficiently expressed the subject. APPEAL from a judgment in favor of the plaintiff, entered on the rerdic 1 . of a jury, in an action brought by the plaintiff to recover a FELLOWS v. MAYOR. 485 FERST DEPARTMENT, OCTOBER TERM, 1876. balance alleged to be due him for his salary as assistant district attorney for the county of New York. Francis Lynde Stetson, for the appellants. Cha/rles E. Miller, for the respondent. BRADY, J. : The question presented in this case is, whether the plaintiff was or was not a State officer while holding the position as assistant district attorney. It is conceded that the district attorney is a State officer. It could not well be questioned. (Rev. Stat., vol. 1, p. 96 [Edm., vol. 1, p. 98, 15J.) The plaintiff was appointed by that officer under the provisions of the Revised Statutes authorizing the appointment of all assistants, etc., by the body, board or officer by which or to whom they shall be respectively subordinate, in all cases in which the appointment is not specially provided for. (1 Rev. Stat., 116, 5.) The salary of the district attorney is fixed by the supervisors and paid by the county. ( 3, chap. 441, Laws 1851.) In 1868 (chap. 854, Laws 1868, p. 2025) the legislature recognized the assistant district attorneys in the act making provision for the government of the county of New York, and limited the number from the 1st January, 1868, to three. Their duties in this county are not, it would seem, specifically set forth by statute, but they are sufficiently known and defined here to warrant this court in taking judicial notice of them. The statutes in reference to these officers do not always state the duties. (See Laws 1857, chap. 409 ; Laws 1866, chaps. 8, 734 ; Laws 1872, chap. 587.) The latter act provides that these officers are to take the constitutional oath of office, attend all criminal courts, assist in all prosecutions for crimes and offenses, appear before grand juries, and perform the same duties before juries as are by law imposed upon the district attorneys. The act does not, however, apply to this county, its design being to create such officers in counties with a population over 70,000, and not to affect counties tfhere the appointment of assistants was then authorized by law. The powers thus conferred upon the officers named are those which are exercised by the assistants in this county, and their services, iu 486 FELLOWS v. MAYOR. FIBST DEPARTMENT, OCTOBER TERM, 1876. consequence of our large population, and the numbers of criminals* who come within the borders of our city, from places too numerous to mention, are not only valuable but indispensable. They arc- connected with and make a part of the department of an officer of the State, connected with its judicial system, and performing many of his duties, with the same eftect as if he discharged them personally. They are his assistants, and not officers of the city or county. It is true that the salary given them is paid by the county, but this does not convert them into county officers, any more than the payment of the salary of the district attorney makes him such an officer. They are, it may be said, no less district attorneys because called assistants. They help to discharge the duties of the office, to administer the criminal laws. (See People ex rel. Buckley v. Benton, 29 N. Y., 534.) When provision is made for the govern- ment of the county of New York, the salary of these officers being a part of it, in virtue of their office, and the relation it bears to the department to which they belong, is ex necessitate included. They were not, therefore, within the provisions of chapter 583 of the Laws of 1871, authorizing ( 3) the board of apportionment to regulate all salaries of officers and employes of the city and county governments. The classes subject to this provision are thus cor- rectly described by Judge MONELL : " The officers whose salaries were brought within the regulating power of the board of appor- tionment, were intended to be such as formed a part of the political government of the city and county, and who were connected with the executive or legislative departments, and not such as were a part of the judicial system of the State ; otherwise, the legisla- ture would not have limited it to officers of the government, but would have extended it to all officers whose salaries were paid out of the city or county treasury. (Landon v. The Mayor, 49 H>\\ Pr., 218 ; see, also, Whitmorev. The Mayor, 12 S. C. N. Y. [5 Hun], 195.) There is no force in the suggestion that, unless the plaintiff was connected with the county government, his salary was never legally fixed at the rate of $10,000. He was connected with the jounty government. This canmt be disputed, but it was in rela- tion to the judicial system of the State that he was thus connected, in the same manner as his superior officer, the district attorney, is. FELLOWS v. MAYOR. 487 FIBST DEPARTMENT, OCTOBER TERM, 1876. The salary of the latter has always been paid by the city or county. (See 1 R. S., 383, 95 ; act of 1851, supra.) This case ii not analogous, therefore, to the case of Dolan v. The Mayw (13 S. f New York," it was declared that the assistant district attorney of said county shall receive the same annual salary as that now paid to the city judge " (vol. 1, Laws of 1870, chap. 382), and that was conceded to be the sum of $10,000. Bv this provision the assistant HUN VOL. VIII. 62 490 FELLOWS v. MAYOR. FIRST DEPARTMENT, OCTOBER TERM, 1876. district attorney was designated an officer of the county, from which his salary was to be received. His duties, from the nature of the appointment and employment, must in a general sense have been very much the same as those of the district attorney whose assist- ant he was. That would be the effect of his position as an assistant without any specific legal designation declaring it in terms. To be an assistant, without any restraint concerning the extent of assistance to be rendered, would necessarily imply an employment, for all practical purposes, as broad as the general duties of the officer to be assisted. (People v. Benton^ 29 N. Y., 534-538.) And as an officer of the county whose salary was payable by the county, the legislature had the power to declare the extent of it, in an act passed for the sole purpose of making provision for the support of the county government. No law had declared the office any more than an office of the county. In that respect it differed from that held by the district attorney himself, who has been classified among officers of the State for the county in which the office is held. (1 R. S. [5th ed.], 379.) And the legislature could very well provide the plaintiff's office with a different designation, and make it a part of the county gov- ernment, as it substantially did by the reference made to it in the law of 1870, advancing the salary. The duties of the office though general were still local. They were performed in and about the proceedings of the courts in the county of New York, its powers and functions were chiefly to be exercised in the county, and the services performed by its incumbent paid for out of the revenues of the county. And in terming it an office of the county and pro- viding for it as such in an act relating only to the county govern- ment, the legislature must have understood it to be a part of that government. It is true the laws to be enforced by the officer were generally those of the State, but in that respect the plaintiff did not differ in principle from other county officers, who are all more or less engaged in the enforcement and execution of the laws of the State. The principle affecting this case in this respect does not differ essentially from that of Huber v. People (49 N. Y., 132), in which it was held that so much of chapter 383 of the Laws of 1870, aa provided for the reorganization of the Court of Special Sessions FELLOWS v. MAYOR. 491 FIKST DEPARTMENT, OCTOBKE TERM, 1876. was unconstitutional, because that court was a local subject, and pro\ isions concerning it could not be united in the same act with another local subject. In the opinion in that case it was declared th&t fc 'An act regulating the duties of a public officer under the general laws of the State, if limited in its operation to a part of the State, or to a single county, is local, and must be passed in the form prescribed by the Constitution, although the subject-matter of the enactment is public, and affects public interests" (id., 135); and the case of People v. (.? Brien (38 N. Y., 193), in which so much of an act as provided for the term of office and the time of electing councilmen, was held to be in contravention of the provisions of the Constitution relating to the passage of local laws, because it had been inserted in a local law passed to enable the board of supervis- ors of the county of New York to raise money, etc., was referred to ae supporting that principle. The case of Gaskin v. Meek (42 id., 186), in which an act was held void because it was proposed by it to regulate the fees of both the sheriff and referee in the city and county of New York, was also cited for the same purpose. In both cases the acts were held to be confined to local subjects, and for that reason could constitutionally include but one, which was required to be expressed in its title. The case last referred to is entitled to much weight in the determination of the present con- troversy, for it related in part to the fees of the sheriff' of the county, who had been classified among the State officers in the same terms as the district attorney had, and by the same statutory pro- vision. (1 R. S. [5th ed.], 379.) If the office of the sheriff could properly be held to be local as it was in that case, surely that of the plaintiff' must have been so. The act of 1870 was therefore a local law, so far as it related to the salary of the plaintiff. It was to pay him for the services required from him as a local officer of the county, which it in terms declared him to be, and for that reason he was within its title, which was to make further pro- vision for the government of the county of New York. If he was not, then it follows that so much of the act as provided for advancing his salary was not constitutionally enacted, and he had no right whatever, at any time, to demand or receive it, and cannot now recover the amount claimed by him ; but as he was a county officer, whose salary was payable from the county revenues, it may 492 FELLOWS u. MAYOR. FIBST DKPAKTMKUT, OCTOBKK TEKM, 1876. be reasonably held, that the advancement of the amount of it was incidental to the general subject expressed in the title of the act, for it was not inappropriate to the subject of making provision for the support of the county government, to provide at the same time for the manner in which its revenues should be expended. (PeopU v. Lawrence, 41 N. Y., 123, 139 ; People v. Common Council of Rochester, 50 id., 525 ; People v. Briggs, id., 553 ; Sullivan v. Mayor, etc., 53 id., 652 ; Harris v. People, 59 id., 599.) And it must directly follow from that conclusion, that it was equally within the power of the legislature to provide again for the reduction of the plaintiffs salary by the act of 1871, under the similar title of "An act to make provision for the local government of the city and county of New York." If it could be advanced by such an act, it was capable of being reduced in the same way (Dolan v. Mayor, 12 S. C. N. Y. [5 Hun], 506) ; but that was not done by a direct provision declaring that intent ; it was provided for, if done at all, in a general way, by empowering the mayor of the city, the comptroller, the commissioner of public works, and the presi- dent of the department of public parks, as a board of apportionment, " to regulate all salaries of officers and employes of the city and county governments." (Laws of 1871, chap. 583, 3.) The power of the legislature to make this enactment has not been assailed, or in any manner denied, but it has been urged as inapplicable to the case of the plaintiff, on the ground that he was not an officer of the county government, and for that reason alone not within this power conferred upon the board of apportionment. If he was not a county officer, then his salary was never increased ; for it was only as an officer of the county government that it could be constitu- tionally done in an act to make provision for that government, and if he was then an officer of the county government, he must have been the same when the act of 1871 was enacted. If his office was included within the terms county government, when the first ace became a law, it certainly had not ceased to be so at the time of the passage of the other. By the first, the legislative understanding of what the office was, found expression in plain terms, which desig- nated it as an office of the county, and as such it was provided for me part of the county government. The terms county government were used in both acts as expressive of the same subject-matter, and FELLOWb y. MAYOR. 493 FIRST DEPARTMENT, OCTOBER TERM, 1876. they were as broad in the last act as they were in the first. It would be entirely unreasonable to hold that the same thing was not, intended to be expressed by the same terms as was at first designed, whenever they were again made use of without qualification, and no restraint whatever was imposed upon their signification in either of these instances. In the title to the act of 1870, and in that of 1871, and in the power conferred upon the board of apportionment, the county government is referred to as the same identity, the same subject, and in the later use made of the phrase, it must necessa- rily have included all that it did in the title of the act of 1870 ; that must have been the understanding and intention of the legislature in using it. It would be plainly absurd to attribute any different design to the signification of the words, in designating the powers of the board, from that given to them for the purpose of maintain- ing the validity of the first act, under which the plaintiff's salary was increased, and as no reasonable distinction of that nature can be drawn, then it follows that the board did have the power to reduce the plaintiff's salary as it was exercised. Its proceedings are not objected to, but simply its power to act in this particular ease, and the existence of the powei itself seems to be reasonably free from doubt. The plaintiff was an officer of the county govern- ment, as that was referred to in the act of 1871, and the board could, for that reason, lawfully reduce his salary. The cases of Quin v. Mayor (44 How., 266) ; Landon v. Mayor (49 id., 218), and Whitmore v. Mayor (12 S. C. N. Y. [5 Hun], 195), have been relied upon as authorities requiring a different construction to be given to the term county government ; and if they do, then the plaintiff's case must fail, because his office was not included by means of them in the act of 1870. But; these cases do not appear to warrant the position they were cited to support. In the first, the points consid- ered were, whether Quin who was a justice of one of the District Courts, was entitled to the salary of $10,000 per year, because it was actually paid to the police justices when the act was passed under which he claimed it ; and if he was. whether the failure to make an appropriation for its payment was a defense to the action. That was substantially all there was of that case, which included no fea- ture of the present controversy. The same observation will apply eqna) force to the case of Landon, who was a deputy clerk of 494 GINNA v. SECOND AVENUE R R CO. FIRST DEPARTMENT, OCTOBER TERM, 1876. the Court of Common Pleas. The legislation concerning his office did not show it, as it has in this case, to be properly designated as a portion of the county government ; while the case of Whitmore arose under and depended upon the construction to be given to an entirely different provision contained in an act passed in 1873. (Laws of 1873, chap. 335, 97.) Neither of these cases can properly be allowed to control the one now before the court, for the statutory provisions relating to it have been enacted in different terms, and for the purpose of securing different results. The action of the board of apportionment by which the plaintiff's salary was reduced should be sustained, if the construction given to the act of 1870 is the proper one, holding it to have been consti- tutionally increased ; and if it is not, then no reduction was required by the board of apportionment, because the salary was never prop- erly advanced. There is no equity whatever in the claim made, and the law should not be strained in orde r to sustain it. The plaintiff understood the amount fixed by thfi board as his compen- sation, and he apparently acquiesced in its action, by continuing to discharge the duties of his office afterwards and receiving the salary as it had been reduced. The judgment should be reversed and a new trial ordered, with costs to abide the event. Judgment affirmed, with costs. MAURICE GINNA, AS ADMINISTBATOB, ETC., OF. JOHN GINNA, DECEASED, RESPONDENT, v. THE SECOND AYENUE RAIL- ROAD COMPANY, APPELLANT. Negligence riding on platform of street ear proximate cause of death, Where a passenger upon a street car in the city of New York, being unable to obtain a seat in the interior of the car, remains standing upon the platform thereof, he is not guilty of such contributory negligence as prevents him from recovering damages for injuries sustained by him, in being thrown from the car in consequence of the negligence of the driver thereof. By hia fall from the car the arm of the deceased was broken above the elbow, the broken fragments of the bone protruding through the skin and resulting in GINNA v. SECOND AVENUE R. R. CO. 495 FIRST DEPARTMENT, OCTOBER TERM, 1876. the development of a poisonous discharge, which, being absorbed by the blood, caused his death. Held, that the wrongful act of the defendant in occasioning the wound was the cause of his death within the meaning of the statute, and that the defendant was liable for the damages occasioned thereby. APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. Austen G. Fox and Waldo Hatchings, for the appellant. The plaintiff's intestate was guilty of negligence that contributed to the injury he received, and the complaint should have been dis- missed. (Clarice v. The Eighth Ave. R. R. Co., 36 N. Y., 136 ; Rickey v. Boston and L. JR. R. Co., 14 Allen, 421.) When it appears that a passenger is riding upon a car in a place of hazard and danger, his negligence is prima facie proved, and the onus is upon him to rebut the presumption. (Clarke v. The Eighth Ave. R. R. Co., 36 N. Y., 136.) The front platform of a horse car is a place of hazard and danger. (Solomon v. Cent. Park, etc., R. R. Co., 1 Swee., 298.) The motion to dismiss the complaint on the ground that the plaintiff had failed to prove a cause of action, and the motion for a new trial, should have been granted. It was not enough to show that the deceased was injured by the negligence of the defendants and that his death occurred three weeks thereafter, especially as the only injury he sustained was a broken arm, but it was necessary to show that the injury the deceased received, and that alone, directly caused his death. It was pyaemia that caused the death ; and the neglect in not caring properly for the open wound and the foul discharge therefrom that produced the pyaemia. So far from showing that the defendant's negligence was the sole and direct cause of the death of the deceased, the testimony shows that the jolt of the car, the falling off the edge of the platform and the breaking of the arm was each one of a series of events that ended, a little over three weeks later, in the death of the deceased ; but that his death was no more the neces- sary, natural or even probable result of any one of these events than it was of his starting to go to the temperance meeting, on his to which he fell off the platform of the defendant's car. (Ryan 496 GINNA v. SECOND AVENUE R. R. CO. FIRST DEPARTMENT, OCTOBER TERM, 1878. v.JH. Y. C. R. R. Co., 35 N. Y., 210; Morrison v. Davis, 8 Harris [Penn.], 171.) Death is not a necessary or usual result of A broken arm. That it is possible cannot be denied, but common experience teaches us that it is very (infrequent. 0. P. BueU, for the respondent. Whether the injury resulting in John Ginna's death was caused by defendant's negligence, and whether he himself was chargeable with contributory negligence, were questions properly submitted to the jury and their decioion thereon ought not to be disturbed. (Bernhard v. Rens. and Sar. R. R. Co., 1 Abb. Ct. of App. Dec., 13 ; Salter v. Utica, etc., R. R. Co., 59 N. Y., 631 ; Weber v. JT. Y. Cent., etc., R. R. Co., 58 id., 451 ; Thurbtr v. Harlem, etc., R. R. Co., 60 id., 326, and cases cited; 2 Redf. on Railways [4th ed.j, 231 ; 17 Wall., 657.) It is not negligence per se, and in all cases and under all circumstances, for a passenger to ride standing on the platform of a car. It was not negligence in this case. (Clarke v. Eighth Ave. R. R..C<>., 36 N. Y., 135 ; Willis v. Long Island R. R. Co., 34 id., 670 ; Spooner v. Brooklyn R. R. Co., 54 id., 230; Hadencamp v. Second Ave. R. R. Co., 1 Swee., 490 ; Edgerton v. N. Y. and Harlem R. R. Co., 39 N. Y., 227; Meeser v. Lynn and Boston R. R. Co., 8 Allen, 234; Burns v. Belief ontaine R. R. Co., 50 Mo., 139.) DANIELS, J. : The plaintiff who, upon the argument of these appeals, was admitted to have been properly appointed administrator, prosecuted this action for the recovery of damages arising out of the death of his minor son, which was alleged to have been caused by the negli- gent act of the defendant's servants. The facts appeared by evi- dence uncontradicted, and in such a manner as to leave them open to but very little if any controversy. The driver of the car testified that the deceased "got on at Thirty-third street; crowded inside; the boy got on, and in the first place he looked in through the door ; there was a lady standing up against the door, and he then turned with his back to the car ; I supposed he had hold on the back ; whether he had hold of the railing, I could not say ; he stood a little to the left of me on the platform, inside of the step ;" there were three or four others also standing upon the platform GINNA v. SECOND AVENUE R. R. CO. 497 FIRST DEPARTMENT, OCTOBER TERM, 1876. The car proceeded in this manner until it reached a switch, which was not known to the driver, between First and Houston streets ; he was then driving at the rate of six miles an hour, or at a slightly higher rate of speed ; the switch had been left open, so that the car, instead of following the main track, would run upon that ; and when it was reached, the horses continued on the line of the main track, and the car took the switch ; that produced a violent jolt or shock, which threw nearly all the persons riding upon the platform off into the street ; by the fall the deceased fractured his arm, which was followed by a disease resulting, three weeks after wards, in his death. The driver had been employed in the capacity in which he acted, from November until March, and stated that it was the practice to walk slow where there was a switch, and that he would not have driven so fast if he had known one to have been at that point. This evidence was further sustained by a witness, who also rode upon the platform. He testified that there was room for him to stand inside, but not for him to sit, and he described the accident substantially in the same way as the driver had previously done. Under these circumstances, it was quite evi- dent that it was the result of carelessness and incompetency on the part of the driver. To drive along a public avenue at the rate of speed mentioned by the driver, at a point where a switch was maintained, which was liable to be opened by passing cars and other vehicles, upon which, when opened, the car would inevitably be propelled, without even the knowledge on his part of its exist- ence, presented a clear case of negligence, falling, if any thing, but little below positive recklessness. That was practically conceded by the evidence of the driver, when he said that he would have gone slow if he knew that a switch existed there. The judge, how- ever, left the question of negligence to the jury, commenting, at the same time, upon a portion of it in such terms as indicated his opinion to be the same as that which has just been expressed. And to that intimation, concerning one of the facts, the defendant's counsel excepted. But the exception cannot be maintained, for the reason that what was said in this respect was fully justified by the evidence, which was without conflict on this part of the case. All that was said on this subject which the counsel considered excep- tional, was the remark that the driver did not appear to be an HUN VOL. VIII. 63 498 GINNA v. SECOND AVENUE R. R. CO. FIRST DEPARTMENT, OCTOBER TERM, 1876. experienced person in that occupation. The learned justice said: "How long he had been in the habit of driving a car, or if he had ever been in the habit of driving one, there is no evidence before you." It was not intended by this to be denied that he had driven as he said he did, from November to March, but simply to intimate to the jury that he was not a practiced or habitual driver ; and that had been substantially stated by the witness himself, who said that his trade was that of a baker, and he had never driven a car before. The more substantial part of the controversy related to the position and conduct of the deceased, and what was said in that connection by the learned justice in the charge given to the jury. It was urged in the defendant's behalf that negligence appeared on the part of the deceased, by proof of the fact that he rode upon the platform at the time of the accident ; but the court declined to adopt that view and submitted the question to the jury, for them to decide it under the circumstances appearing from the evidence. The portion of the charge upon this subject contained intimations, which indicated the existence of an opinion that the deceased could not be charged with negligence from the mere fact of riding upon the platform when the inside of the car was full ; but in that proposition the learned justice was precisely in accord with the established authorities. ( Ward v. Central Park, etc., R. R. Co., 42 How., 289 ; Clark v. Eighth Ave. R. R. Co., 36 N. Y., 135 ; Willis v. Long Island R. R. Co., 34 id., 670 ; Spooner v. Brook- lyn R. R. Co., 54 id., 230.) In the outset it was remarked, by way of admonition to the jury, that " whatever might be said in regard to any of the facts that are in dispute, you must use your own judgment, and not mine, as what I shall say is merely to illustrate points of law that are in the case. leaving to you the decision of the questions of fact." And that was in no manner afterward retracted or withdrawn. But the following observations, which, in some respects, were more general than was required, either by the decisions of the courts or the evidence in the ctse, were made in the course of the charge : " It is said, with some truth, by members of the bar, that the Court of Appeals have gone a great way in excusing railroad corporations for accidents that have occurred, but until the Court of Appeals shall decide to what extent cars may be packed without allowing men to stand on the front or GINNA v. SECOND AVENUE R. R. CO. 499 FIRST DEPARTMENT, OCTOBER TERM, 1876. rear platform, whose fare they have taken, I am not prepared in this case to charge, as matter of law, that merely standing on the front or rear platform on the part of the deceased was negligence. I am disposed to submit to you as a question of fact, for you to say whether, under the circumstances, that was a negligence on his part contributing to the accident by which he sustained this injury. How far the Court of Appeals shall finally determine that a car may be packed without allowing men to stand on the outside, it is not for me to say at the present time. I do not think that they have gone to the extent of saying that a car must be packed so full that mechan- ical pressure would be required to get any more in, before allowing men to stand outside." To this statement a general exception was taken by the defendant's counsel. The proposition advanced was sound, for it left the jury to determine whether, in the condition in which the car was when the deceased took passage upon it, he was negligent in remaining as he did upon the platform. If he could not conveniently enter it, he certainly was not negligent, and there was evidence in the case tending to warrant that view. The Court of Appeals has not gone so far as to hold that in such a case the passenger will ride at his own peril by standing upon the platform. But it has been otherwise held that upon a train propelled by steam, and ordinarily traveling at a much higher rate of speed than street cars, negligence will not be attributable to the passenger injured, from the mere fact that the injury occurred while he was riding upon the platform when a seat could not be obtained inside the car. And there was no apparent reason for supposing that the authority upholding that proposition would be disregarded or overruled by any subsequent decision on the same subject. It was, on the con- trary, to be supposed that street railway companies would be held liable to the observance of the same rule ; and as they are run at less hazard and risk, in the way of accidents to passengers, they are certainly entitled to no more favorable consideration, and they have received no more in the administration of the law by the courts. If further instructions were deemed necessary by way of explanation upon this subject they should have been, but were not, requested. The defendant's counsel, in like manner, excepted to the state- ment made, that the jury had a right to infer from the evidence of 500 GINNA v. SECOND AVENUE R. R. CO. FIRST DEPARTMENT, OCTOBER TKRM, 1878. the driver, that the deceased held on to the iron rail at the end of the car to keep on the platform. That had been stated by the driver without objection to it, as an inference he deduced from the fact that the deceased, after looking into the car, turned his back to* the end of it. The facts themselves did appear from the evidence he gave. The deceased stood with his back to the car, which \vaa a position warranting the supposition that he would take hold of the railing placed there to steady and maintain himself in his position, as people usually do when they can, who are riding upon the platform of a street car. The jury could justly infer from these facts that such was the position in which the deceased had placed himself, and that was all that was really held by the court. It was further added upon this subject : " I submit to you the question whether the position of the deceased, under the circum- stances, contributed in any way to the accident by which this injury was sustained ? That question I feel disposed to leave to you as a question of fact, not being prepared at the present time to say that mechanical pressure is needed to fill a car before a man can stand on the platform." That was excepted to by the defendant's counsel. But as the proposition contained in the state- ment was as favorable to the defendant as it had any right to require, the exception cannot be sustained. It was probably intended by what was said to repeat only what had before been stated, which was that the plaintiff could not recover if the deceased was unnecessarily and negligently riding on the platform of the car; it was in that sense that it must have been understood by the jury, for if they had followed its literal effect they would necessarily have found a verdict for the defendant, inasmuch as it was clear that the position of the deceased did contribute to the production of his injury. In that respect the case was too strongly stated in the defendant's favor. The court also stated that the question of damages was entirely within the judgment of the jury, and to that an exception was taken by the defendant's counsel. The statement was entirely accurate and no explanation was required to be added to it. For both reasons the exceptions must be overruled, Under the evidence which was given, all these points were dis- posed of properly by the court. If more was said than wai GINNA v. SECOND AVENUE R. R. CO. 501 FIRST DEPARTMENT, OCTOBER TERM, 1876. required in some respects, it was not to the injury of the defendant. The case was a proper one for the jury, and their verdict cannot be set aside as unwarranted. The evidence showed that the deceased sustained his injury by the carelessness of the defendant's servant. He was required to stand in farther from the edge of the platform on two occasions by the conductor, but he was then nearly a foot from the steps, and it does not appear that he could conveniently have placed himself at a safe position while the other persons besides himself were also riding upon the platform. These, however, were matters appropriately left to the determination of the jury, and it must be assumed now that they were properly considered and decided by them. . The deceased was shown to have been a remarkably temperate, industrious, healthy and intelligent, young man of the age of eighteen years, and the verdict, which was for the sum of $3,000, was not under those circumstances disproportioned to the injury caused by his death to his next of kin. By the fall his arm was fractured above the elbow, the broken fragments of the bones protruding and wounding the flesh and the skin. That resulted in the development of a poisonous discharge which remaining in the wound was absorbed by the blood and in three weeks afterwards he died from the effects of the poison. It was not claimed upon the trial that the injury had been improp- erly treated or that death was not the result of it. And the position could not have been reasonably taken in view of the evidence of the physician, for he testified that the bones had been put in their proper position, and that the physicians of the hospital of which the witness was one, would probably have treated the injury in the same way it had been done before the deceased went there. More attentive treatment might have saved the life of the young man, but its necessity was not apparently suspected. He was subjected to that which was followed and designed to be proper by the wrongful act of the defendant. That was the cause which placed his life in jeopardy, because it produced the wound whose poisonous discharges resulted in his death. No other wrong or misconduct than that of the defendant was shown to have inter- vened ; that caused his death, within the meaning of the provisions of the statute relating to this class of cases, by producing the bodily 502 ROEBLING v. DUNCAN. FIRST DEPARTMENT, OCTOBER TERM, 1876. condition rendering it under the circumstances inevitable. It waa the operative as well as the proximate cause of death, and that was sufficient to render the defendant liable. The judgment and the order should be affirmed. DAVIS, P. J., and BRADY, J., concurred Ordered accordingly. WASHINGTON A. ROEBLING AND OTHERS, RESPONDENTS, v WILLIAM BUTLER DUNCAN AND OTHERS, APPELLANTS. fraud concealment of bankrupt condition Representation. Although a banker or trader in embarrassed circumstances, who is struggling in good faith to retrieve his fortunes, is not compelled to disclose the fact of his embarrassment to persons dealing with him ; yet, if he is at the time hopelessly insolvent, he is guilty of a fraud, if, by virtue of his supposed solvency and well established credit, he contracts obligations which he cannot reasonably expect to pay. Persons dealing with a banker in good faith, and in reliance upon his apparent solvency, will be protected against the consequences of the concealment by the banker of kis real condition, if he is at the time not merely insolvent but bank- rupt, and where such concealment involves a degree of bad faith from which the law will imply fraud, although no actual representation has been made. APPEAL from an order made at Special Term, denying a motion to vacate an order of arrest. The action was brought by the plaintiff against the defendants, copartners carrying on a business as bankers in the city of New York, under the firm name of Duncan, Sherman & Co., upon a bill of exchange, drawn by the defendants, July 21, 1875, upon the Union Bank, of London, for 296 Ss. %d. sterling. An order of arrest was obtained therein against the defendants. The defendants, in the affidavit on which the motion to vacate the order of arrest was made, among other things, alleged as follows : " And this deponent further says, that the said firm of Duncan, Sherman & Co., composed of the defendants in this action, did, on the 27th July, 1875, stop their payments and execute and deliver a ROEBLING v. DUNCAN. 503 FIRST DEPARTMENT, OCTOBER TERM, 1876. general assignment of all their estate and property of every description to William D. Shipman, Esq., counselor at law, upon trust to get in the said estate and convert the same into money, and apply the proceeds to the payment of all the debts of the defend- ants according to law, without any preference whatever ; that the defendants were led to this course by the information received on the morning of that day by telegram from Europe, that negotia- tions there pending with a view to the permanent relief of the defendants, and to prevent the necessity of any interruption what- ever in their business, had failed of success; that shortly before the sale of the bill of exchange in the complaint mentioned, deponent had returned from Europe, and about the time of said sale was engaged in an examination into the financial affairs of his firm. He had discovered that they were in an embarrassed condi- tion, but was at the same time actually engaged in negotiations for additional means which would justify the defendants in continuing their 'business, a course which would be for the best interests of all concerned in their estate, and that deponent had strong hopes of accomplishing that result; and that it was not until the morning of the twenty-seventh of July, that from the advices received from Europe he became satisfied that the pending negotiations could not be carried to a successful conclusion ; and that immediately upon receiving such advices he took the course which seemed to him most for the interest of all his creditors ; that pending the said negotiations, and while the prospect seemed in favor of their suc- cessful termination, it was necessary that no change in their manner of doing business should be made, as the effect of such change would have been to render nugatory the efforts on foot for the permanent relief of the defendants. " And this deponent further says, that it is not true that on the 21st July, 1875, the defendants, or either of them, knew or believed that they were hopelessly insolvent, or had exhausted every avenue of relief, or possessed no financial resources whatever. " And that it is not true that when the bill of exchange in the complaint mentioned was sold, the defendants, or either of them, knew that the same would not be paid or honored, or that they did not or would not have sufficient funds at the Union Bank to meet and pay the same. * * * 504 ROEBLINTG v. DUNCAN. FIRST DEPARTMENT, OCTOBER TERM, 1876. " And this deponent denies that he or his co-defendants, or either of them, ever made any pretense on the subject of their solvency, or perpetrated any cheat or fraud upon the plaintiffs, or upon any other person, or by any trick or device whatever obtained moneys of the plaintiffs." The court, from the papers used on the motion, found that when they sold the bill in question the defendants' liabilities amounted to about $5,000,000, and their assets to about $2,000,000. Joseph Larocque, for the appellant. Henry H. Morange, for the respondent. DAVIS, P. J. : The court at Special Term, in deciding the motion, pronounced the following opinion : " BARRETT, J. The rule of law which governs in cases of this kind is well settled. The question is one of intent, to be ascertained by an inquiry as to whether the debtor had any reasonable expecta- tion of meeting his obligations at maturity. If he had such reason- able expectation, then it is the case of a legitimate effort by an embarrassed person, be he trader or banker, to retrieve his fortunes ; and there the law is not so strict as to require a disclosure which would probably defeat the effort. Otherwise it falls within that other class of cases where the merchant or trader, finding himself hopelessly insolvent and with stoppage imminent, without disclos- ing his situation, and in virtue of his supposed solvency and well established credit, contracts fresh obligations which he cannot rea- sonably hope to meet; and this the law condemns as fraudulent. Now, in the case at bar, the defendants were hopelessly insolvent when they sold the bill in question: that is, their liabilities amounted to about $5,000,000, their assets to less than $2,000,000. They deny knowledge of insolvency, but admit knowledge of embarrassment. Six days later they stopped payment, aud made a general assign- ment. Under these circumstances, it became very clearly the duty of the defendants, especially after the admonition of Mr. Justice LAWRENCE, to lay before the court all the facts upon which they ROEBLING v. DUNCAN. 505 FIKST DEPARTMENT, OCTOBER TERM, 1876. based their sanguine expectations. This they have failed to do. They say that they were negotiating for additional means which would have insured their ability to continue, and that they had strong hope of accomplishing that result. But they furnish no facts upon this head. They do not say with whom they were nego- tiating, nor for what sums, nor do they give letters, telegrams, or other particulars. It was for the court to say, when the facts were presented, whether the hopes and expectations of which the defend- ants speak were reasonable and real. It certainly will not do for a firm which owes $5,000,000, and has less than $2,000,000 of assets," when taxed with continuing after knowledge of that state of things, to rely upon generalities. Again, on the question of knowledge, there is unfortunately the same reticence. The defendants admit that about the time of the sale of the bill they were engaged in an examination of their financial affairs, and had discovered that they were embarrassed, though not hopelessly insolvent. The court could better have sustained that view of the case, if the defendants had given the facts as to such examination and discoveries. Pre- sumptively such examination disclosed the truth, viz., that the defendants could not pay forty cents on the dollar. If it did not, if there was any mystery about their affairs which could not be immediately unraveled by an examination of their books, or any peculiarity about their assets which rendered at least an approximately accurate valuation impossible, the defendants should have shown what the difficulty was. No light is thrown upon the subject by simply declaring that they found themselves embarrassed. That, again, was a matter for the court. What the defendants in fact found was, that they owed so much, and that they had such and such assets with which to pay. It was their duty to give the court, as nearly as might be, a photographic view of this examination, and of all the facts tending to justify the assumption of mere embarrassment, which might be relieved by the acquisition of additional means. It is true that there is an averment in the defendants' affidavits that the realizable value of assets did not "necessarily" appear upon the face of their books, and that without a close examination of the several accounts the value of assets or amount of losses would not "necessarily" appear. This is a general statement which is true of almost every firm, but HUN VOL. VIII 64 506 ROEBLING v. DUNCAN FIRST DEPARTMENT, OCTOBER TERM, 1876. whether, or to what extent, the defendants here, in continuing after such examination, were misled by any such state of things is not detailed. It thus appears that when the defendants sold the bill, their liabilities exceeded their assets by upwards of $3,000,000, and that they had made an examination of their condition which ought to have disclosed that fact, and the consequent futility of negotiat- ing for the enormous sum, which would have been necessary to have placed them upon a reasonably sound basis. Under such circumstances, therefore, it was their duty to have stopped at once ; and now, when they seek to justify their continuance until the failure of the negotiations for additional means, they should have spread before the court, fully and explicitly, the particulars of the examination which they had made, the assets which it showed, the value which they placed thereon, the facts upon which they grounded such valuation, and, as a sequitur^ what deficiency there then appeared to be between the liability of the defendants and mean^ of payment. If, upon such facts having been presented, the court had been of opinion that as the defendants were then situated (that is, treating them as honest men of fair judgment, looking at their affairs according to the best lights then afforded to them), they were justi- fied in believing that theirs was a case of mere embarrassment, and not of complete insolvency, it would have justified them in continu- ing their business without disclosing their condition. But even then , if the embarrassment appeared to be of so grave a character that without additional means there was no prospect of retrieving themselves, the court, before finally justifying the incurring of fresh obligations (even pending the negotiations), would have been compelled to ask for full and precise information as to the amount necessary to be had, and the grounds upon which the defendants based their hope of obtaining it ; in fact, for the details of such negotiations. The explanations made by the defendants, with respect to the state of the account with the Union Bank of London, are sufficiently full. They do not, however, alter the effect of the failure to furnish the facts which have been discussed. Of course, the payment of the bill did not altogether depend upon the fact, that the defendant had money or credit with the drawee. It depended rather upon their continuance. In other words, they were not justified in the expectation that the bill would be honored ROEBLING t>. DUNCAN. 507 FIRST DEPARTMENT, OCTOBER TERM, 1876. merely because the drawees had funds in their hands, unless they were also justified in the expectation of success in the negotiation for additional means, and in the belief that such additional means would enable them to continue their business without interruption. Indeed, as they themselves say, the cause of the failure of the Union Bank of London to honor their bills, including that now in question, was the telegraphic report in London of their stoppage and of the execution of their assignment. The court is, therefore, constrained to hold, as the necessary result of the conceded facts, calling as they do for clear and preci&e evidence (which has not been furnished) of other facts sufficient to justify the alleged expectation of continuance, that the defendants must have known, when they sold the bill, that before it reached London they would be compelled to close their doors, and that a refusal to accept would be the result. It follows, therefore, without the necessity of con- sidering the other branch of the case, that the motion to vacate the order of arrest must be denied." A careful examination of the case has led us to substantially the same conclusion expressed in this opinion. It seems unnecessary, therefore, that we should do more than simply express our concur- rence in the views and conclusions of the opinion of the Special Term. The case stands upon a few bold and striking proposi- tions : First. That at the time of sale to plaintiff of the bill of exchange, the defendants were, in fact, utterly and hopelessly insolvent. Their indebtedness was about $5,000,000. Their nom- inal assets did not exceed $2,000,000, and were in fact of much less value. They probably did not know the extremities of their con- dition, but enough is shown to establish that they did know that their condition was one of utter insolvency, unless they could real- ize relief to a very large amount from sources which they say were in contemplation. That relief was contingent. It wholly failed, and it seems to us that it must have been at all times so doubtful in character that the defendants had no right, with what knowledge they must have possessed of the hopeless condition of their own affairs, to force upon persons who dealt with them in good faith, with full confidence in their entire solvency, the chances of loss upon the failure of their alleged expectations. Certainly they were bound to show to the court, in the most clear and convincing 508 MATTER OF WOVEN TAPE SKIRT CO. FIRST DEPARTMENT, OCTOBER TERM, 1876. manner, the basis of their expectations, and that they had just rea BODS for relying upon them. The opportunity was twice afforded them to do this on the two motions in this case. We agree with the court below, that the general statements were not sufficient under the circumstances. Dealers with bankers, while acting in good faith in reliance on their apparent solvency, must be protected against the consequences of the concealment of their real condition when such condition is not merely insolvency, but utter bank ruptcy, and where such concealment involves a degree of bad faith from which the law will imply fraud, although no actual representa- tion be made. We think the order should be affirmed. DANIELS, J., concurred ; BRADY, J., concurred in the result. Order affirmed. IN THE MATTER OF THE WOVEN TAPE SKIRT COMPANY. Dissolution of corporations Disagreement of trustees Sale of assets chapter 442 of 1876. tinder the provisions of chapter 442 of 1876, authorizing the dissolution of a corporation in case the trustees are unable to agree as to the management thereof, the court may, in proper cases, direct the assets remaining after the payment of the expenses of the receivership and of the debts and liabilities of the corporation, to be sold and the proceeds divided among the stockholders. APPEAL by Joseph I. West from an order directing the receiver of the property of the Woven Tape Skirt Company to sell at pub- lic auction, after due notice, as required by law, the interest of the corporation in letters patent, and an agreement concerning the use of the invention made with the assignors of such interest. Daniel T. Walden, for the appellant. Albert Cardoso, for the respondent. DANIELS, J.: The corporation was formed for the purpose of manufacturing and selling woven tape skirts, under the right to do so secured by MATTER OF WOVEN TAPE SKIRT CO. 509 FIRST DEPARTMENT, OCTOBER TERM, 1876. virtue of the patent and agreement. It consisted of but four asso- ciates, who disagreed in its conduct and management. For that reason alone it was dissolved, as it has been provided that such corporations may be, pursuant to the authority for that purpose created by chapter 442 of the Laws of 1876. When the corporation was formed, the appellant and Moritz Cohn each owned one-sixth of the patent, and had an agreement with the owners of the other four-sixths concerning its use. These two persons assigned the agreement and their respective one-sixths in the patent to the corporation, and received an equivalent for the same in an obligation that there should be issued to each of them 300 shares of its paid up stock. They also contributed for work- ing capital the sum of $20,000 each. After the formation of the corporation, Cohn transferred one-third of his interest in it to Samuel Galland, who continues to be the owner of that interest. Both himself, and Cohn, who is the owner of two-thirds of one-half the stock of the corporation, desire a sale of the interest assigned to it in the patent and agreement ; and, in support of their supposed right to have such sale made, swear that, in their judgment, a larger price can be obtained for the entire .interest together than for the two undivided halves sold separately. The appellant is willing to receive back his interest as he assigned it in full, for so much of his right to participate in the assets of the corporation, and protests against any sale of it whatever. The statute provides that, after paying the expenses of the receivership arid the debts and liabilities of the corporation, the residue of its assets shall be distributed among the stockholders in proportion to their several interests therein. (Laws of 1876, chap. 442.) But it could not have been intended by this provision that it should be understood as prohibiting a sale for the purpose of mak- ing that distribution. Cases may arise where a distribution of the property itself can be equitably made by a decision, and where that mode of proceeding would secure to each one of the stockholders all that he could be entitled to receive. There a sale would be evidently needless and improper. In other cases, nothing less than a sale of the assets would, under a proper distribution of the assets, be practicable. In them the sale would become a plain necessity, and the only proper course for making the distribution provided 510 TODD v. SHELBOURNE. FIKBT DEPARTMENT, OCTOBER TERM, 1876. for by the statute. The legislature has not in terms prescribed the manner in which the assets shall be distributed. It has simply provided generally for a distribution ; and, consequently, whatever may become necessary for the purpose of effectually and prop- erly making it, must, according to well settled principles of con- struction, be included within the authority created by the statute. (Green v. The Mayor, 2 Hilton, 203, 209 ; People v. White, 59 Barb., 666.) If the distribution can be properly made without a sale, then it should not be made. But when a sale may become necessary to give each one of the stockholders his full interest in, the assets, then, clearly, it should be ordered by the court. An exigency of this description has been shown by the affidavits to exist in this case. For it has been made to appear that a sale of the two-sixths of the patent, together with the agreement made for its use will, very probably, bring a larger proportionate price than a sale of one-sixth with an undivided one-half of the agreement. And both Cohn and Galland are entitled to all the advantage that can be so secured in the distribution of the assets of the corpora- tion. In that way alone will they receive the full measure of their interests. For these reasons the order made was a proper one, and it should be affirmed with ten dollars costs, besides disbursements. DAVIS, P. J., and BRADY, J., concurred. , Order affirmed, with ten dollars costs and disbursements. HENRY B. TODD, RESPONDENT, v. SIDNEY F. SHEL- BOURNE, APPELLANT. Negotiable paper invalid in hands of payee bona fide purchaser of recovery by, restricted to amount paid. An indorsee of commercial paper, not valid as a legal obligation in the hands of the payee by whom it was negotiated, is restricted in his recovery in an action against the maker, to the amount advanced by him upon the faith of the paper, together with interest thereon. TODD v. SHELBOURNE. 51] FIBST DEPARTMENT, OCTOBER TERM, 1876. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. F. O. Salmon, for the appellant. James J. Thompson, for the respondent. DANIELS, J. : This action was brought to recover the amount of a promissory note, subscribed by the defendant as maker. The note was dated 611 the 26th day of October, 1869, and by its terms the defendant promised to pay James C. Mumys, or order, the sum of $10,000, in three years, for value received. It was not delivered to the payee, or to any person for his use, but it was left at his place of business, and, as the referee has found, in his possession, in con- templation of a settlement of their business affairs, to be after- wards had between them. No settlement was effected between them and no final agreement made as to the disposition to be made of the note. It follows, from these facts, that the note never became binding upon the defendant as a contract in favor of the payee. (Hall v. Wilson, 16 Barb., 548, 549, and cases cited.) To give that character to it there should have been a delivery of it to him or to some other person for his benefit ; and that was shown never to have taken place. The consequence resulting from the absence of that fact was that the payee was not in a condition to enforce the note as a legal obligation, or to maintain any action upon it against the defendant. Before the expiration of the three years he sold, and by his indorsement upon it transferred the note to the plaintiff for the sum of $1,500. No more than that sum was ever advanced upon the faith of it by the plaintiff, and the point presented for the decision of this court by the present appeal is, whether he must not be restricted in his recovery to that amount and interest upon it. If the note had been delivered to the payee for a good consideration, and in that way had become a legal obligation in his favor against the defendant, then he could have sold it for any price that would have been satisfactory to himself, and the pur- chaser would have been entitled to recover the full amount of it from the defendant ; but from the facts appearing it this caee it i* 512 TODD v. SHELBOURNE. FIRST DEPARTMENT, OCTOBER TERM, 1876. entirely evident that the defendant never incurred any obligation to the payee by means of the note. It was not the evidence of a legal demand in his favor; and it could only become a lawful con- tract in favor of the plaintiff or any other person receiving it from the payee before it was due, by the advancement or parting with value upon the faith of it. In favor of such a person the law will give the instrument vitality for the purpose of protecting him against loss. That results from the well established rule that where one of two innocent persons must sustain a loss through the unauthorized act or misconduct of another, it shall be borne by the person who invested him with the apparent authority to perform the act. The object of the law is to protect the dealer innocently and properly parting with his money or property on the faith of appearances, justifying the conclusion that the person receiving it is authorized to perform the act for which it may be obtained ; and the reason upon which the principle has been maintained requires nothing more than a complete indemnity to him against all proba- ble loss. This has long been the extent of protection accorded to the purchasers of property in good faith against the equitable rights of others. And no good reason appears for making any dis- crimination in its application on account of the nature of the prop- erty which may have been the subject of the sale. The necessities of the case and the equities involved are the same in all cases, and the rule should be uniformly applied to their adjustment. Accordingly, it has been held that the indorsee of commercial paper not valid as a legal obligation in the hands of the payee negotiating it, must be restricted in his recovery to the value with interest advanced by him to the payee upon the faith of it. (Ste- vens v. Corn Exchange Bank, 10 S. C. N. Y. [3 Hun], 147, and cases referred to in the opinion; Platt v. Beebe, 57 N. Y., 339; Wiffen v. Roberts, \ Esp., 261 ; Jones v. Hibbert, 2 Starkie, 304 ; Nash v. Brown, 6 Mann., G. & S., 584 ; Chitty on Bills, 89 [12th Am. ed.], note x / Allaire v. Hartshouse, 1 Zab., 665, 673 ; Parish v. Stone, 14 Pick., 198, 209 ; Stoddard v. Kimball, 6 Gush., 469 ; ffublard v. Chapin, 2 Allen, 328 ; Petty v. Harnum, 2 Humph., 102 ; Hoi- man v. Hobson, 8 id., 127 ; Simpson v. Clarke, 2 Crompton, M. & R., 342; Youngs v. Lee, 18 Barb., 192, 193; affirmed, 2 Kernan, 551 ; Card-well v. Hicks, 37 Barb., 458 ; Harger v. Wilson, 63 id., MATTER OF MOORE. 513 FIRST DEPARTMENT, OCTOBER TERM, 1876. 237.) These authorities fully sustain that proposition, and they are in no sense in conflict with the rule which allows a recovery for the full amount of paper improperly negotiated when an adequate con- sideration has been advanced before its maturity in good faith upon it. The paper derives its vitality wholly from the circumstance that it has been obtained for value without notice by an innocent pur- chaser. For his protection it is maintained in his hands as a legal obligation. The object of the law is to save him from loss ; and to do that, a recovery of the amount he may have advanced is all that can be required. To go beyond it would be inequitable and unjust to the party, after that, equally entitled to be protected from unnecessary loss. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event, unless, within twenty days after notice of the decision, the plaintiff stipulates to reduce the recovery to $1,500 and interest upon it from the 2d day of October, 1872 ; in that event the judgment as so reduced will be affirmed, without costs of the appeal to either party. DAVIS, P. J., and BRADY, J., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event, unless, within twenty days after notice of decision, plaintiff stipulates to reduce the recovery to $1,500 and interest from October 2d, 1872; in that event, judgment as so reduced, affirmed, without costs of the appeal to either party. IK THE MATTER OF THE PETITION OF JEREMIAH H. MOORK TO VACATE AN ASSESSMENT FOE SECOND AVENUE. Assessments purchase of property subsequent to confirmation presumed to TUVM been made subject to Party aggrieved who is under chap. 388 of 1858. Where a person moves, under chapter 338 of 1858, to vacate an assessment upon property purchased by him subsequent to the confirmation of the assessment, '.t rests upon him to show that he is aggrieved thereby. In the absence of any evidence on this point, it will be presumed that he purchased subject to the assessment, and that the same formed part of the consideration given by him for the property. APPEAL from an order setting aside an order vacating an assessment, Huw VOL. VIII. 65 514 MATTER OF MOORE. FIRST DEPARTMENT, OCTOBER TERM, 1876. Irving Ward, for the appellant. Wm. C. Whitney and Hugh Z. Cole, for the city. BRADY, J. : The order granted in this matter, vacating the assessment, was based upon the allegation, not then disputed, that the petitioner was the owner of the lots designated. It was subsequently dis- covered, and admitted by him, that he was not the owner at the time the assessment was confirmed, but became so subsequently, namely, on the 14th April, 1870, the assessment having been con- firmed on the 7th March, 1870. The order was therefore, on application, duly vacated, and from that result the petitioner appeals. The question still presents itself, is he aggrieved ? The presumption is, that he took the lots sub- ject to the assessment which formed a part of the consideration- which he gave for them. If it were otherwise, it was incumbent upon him to show it. The rule is settled, that the applicant in cases like this has the onus of bringing himself within the pro- visions of the statutes authorizing the relief sought by competent proof on all contested questions. (In re Basford, 50 N. Y., 509 ; In re Bu~ke, 62 id., 224.) It does not follow from the mere fact of ownership acquired subsequent to the confirmation of an assessment that the owner is aggrieved. The presumption is that he was indemnified, and it will control until there is evidence to the contrary. If it formed part of the consideration, then the presumption is that the prior owner is the one aggrieved, because he has made an allowance tc cover it in the transfer of the property, or is bound to do so. (In the Matter of Phillips, 60 N. Y., 16.) There being in this mat- ter no proof that the petitioner was bound to pay the assessment as an original liability, or as one assumed without indemnity, the order made should be affirmed. He who is merely discharging the debt of another with property or funds furnished him, cannot com- plain as an aggrieved person. The order shoul i be affirmed, with ten dollars costs and dis- bursements. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed, with ten dollars costs and disbursements. EMPIRE B. & M. L. ASSO. v. STEVENS. 515 FIRST DEPARTMENT, OCTOBER TERM, 1876. THE EMPIRE BUILDING AND MUTUAL LOAN ASSO- CIATION AND GEORGE H. POOL, APPELLANTS, v. MARY E. STEVENS IMPLEADED WITH JOHN O. STEVENS, RESPONDENT. Practice First department Motion to confirm referee" 8 report Special Terms at which heard. Where, upon the trial of an equity case at the Special Term in the first district, an interlocutory decree is made directing a reference for certain purposes, a motion to confirm the report must be made at a Special Term for enumerated motions, and not at a Special Term and chambers for non-enumerated motions only. APPEAL from an order denying a motion made at chambers, to confirm a report of a referee in an equity case tried at Special Term. H. Brewster, for the appellants. A. J. Perry ) for the respondent. BBADT, J. : This was an action for the foreclosure of a mortgage. Justice VAN VOBST, before whom the trial was had at Special Term, made an interlocutory decree directing a reference for certain purposes, and that on the coming in of the report the plaintiff have final judgment, etc. The report of the referee was sent back for further findings, and a supplemental report having been made, a motion was made at chambers and Special Term to confirm the reports. This motion was denied, and it would seem because the motion was not made at the Special Term proper, the tribunal in which the interlocutory decree was made. In the distribution of the business of this court in this department, the chambers and Special Term for non-enumerated motions are held each month, but the Special Term for enumerated motions, and for trials in equity causes and of issues of law, are not so frequently held, and are entirely distinct. The tribunal for the disposition of contested cases in equity, upon complaint and answer, is a different branch of this court fiom that of the allied chambers and Special Term, 516 VON HEIN v. ELKUS. FIRST DEPARTMENT, OCTOBER TERM, 1876. and the duties to be performed in each are well known and clearly defined. When the interlocutory decree was entered herein the proceedings to ultimate a final judgment were necessarily to be had in the court pronouncing it, and hence it was necessary to go back to it for that purpose. This was not done, and the practice of the counsel for the respondent was erroneous. He had sought the intervention of a court having, by precedent and practice, no duty to perform such as he called for. It was incumbent upon him to apply to the tribunal having taken cognizance of the issues and having passed upon them. For these reasons the order appealed from should be affirmed ; but we think, under the circumstances, without costs of the appeal to either party, and without prejudice to a renewal of the applica- tion at the Special Term. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed, without costs. OTTO YON HEIN, AS ASSIGNEE IN BANKRUPTCY OF E MAN- UEL BUCHSTEIN, A BANKRUPT, RESPONDENT, v. ISAAC ELKUS AND EMANUEL BUCHSTEIN, APPELLANTS. General assignment chap. 348 of 1860, 3 failure to file bond Assignment with- out preference bankruptcy act. The omission of an assignee for the benefit of creditors to file the bond required by section 8 of chapter 348 of 1860, does not certainly until the inventory is filed perse invalidate the assignment. The right to make a general assignment for the benefit of 'creditors is not sus- pended by the provisions of the bankrupt act, provided such assignment con- tains no preferences and is not made with intent to defraud the creditors of the assignors. Baas v. O'Brien (Ct. App., not yet published) followed. APPEAL from an order appointing the plaintiff the receiver of the property, assets and effects of the defendant Buchstein, which the latter had assigned to the defendant Elkus, under and by virtue VON HEIN u. ELKUS. 517 FIKST DEPARTMENT, OCTOBBK TEBM, 1876. of a general assignment for the benefit of creditors, dated and recorded on the 23d of November, 1875. The facts are as follows : On the 23d day of November, 1 875, the defendant Buchstein made to Elkus a general assignment, without preferences, for the benefit of creditors, under the laws of the State of New York. On or abont the 30th day of November, 1875, a petition in bankruptcy was filed against Buchstein in the United State Dis- trict Court, Southern District of New York, and such proceedings were had thereon that, on or about the 19th day of February, 1876, the said Buchstein was adjudged a bankrupt ; and on that day Otto Von flein was appointed assignee of said bankrupt's estate. And on the 24th day of February, 1876, Isaac Dayton, the register in bankruptcy to whom the matter was referred, made to Von Hein, as assignee, a formal assignment of the estate of Bucbstein, under the provisions of the fourteenth section of the United States bankrupt act. The complaint avers that the plaintiff, as assignee, demanded from Elkus the possession of the property, and that Elkus refused to deliver it to him. The answer admits the demand by the plaintiff, as asaignee under the United States bankrupt law, and the refusal of the defendant to deliver it to him. The complaint also charges that the assignment to Elkus was made with intent to delay the operation of the bankrupt act, and also to hinder, delay and defraud the creditors of Buchstein. These allegations are denied by the answer. The defendant Elkus admitted that he had disposed of certain goods belonging to the bankrupt before filing the bond required by the act of 1860, but alleged that " at the time of such sales the said assignee had his bond executed and ready to be filed, and that the same would have been filed but for the injunction obtained at the instance of the plaintiff in the bankruptcy court, and served in said assignee." A. J. Dittenhoefer and Cornelius A. Runkle, for the appellant* D. M. Porter, for the respondent. 518 VON HEIN v. ELKUS. FIRST DEPARTMENT, OCTOBER TERM, 1876. BRADY, J. : The assignment made by the defendant Buchstein to hia co-defendant, Elk us, contained no preferences, and is not assailed by proof showing that it was intended to defraud creditors. Its invalidity seems to have been predicated, therefore, of the omission of the assignee to tile a bond as required by the act of 1860. (Lu\\ H of 1860, chap. 348.) The statutes of 1860 and the amendments of 1874 (Laws of 1874, chap. 600), provide, on that subject, that the debtor making the assignment shall file an inventory or schedule within twenty days after the date thereof, but if it be omitted, or the debtor refuse to make it, the assignment shall not for that reason become invalid or ineffectual. The assignees are then authorized to make an inventory within six months of the date of the assignment of all the property which they may be able to find, and compulsory measures are provided to assist them. The assign- ees are required, within ten days after the delivery of the inventory or schedule to the county judge (and before they shall have power or authority to sell, dispose of, or convert to the purposes of the trust, any of the assigned property), to enter into the bond pro- vided for; and it is declared that the bond shall be filed in the county clerk's office where the assignment is recorded. The bond is to follow the inventory which is to be furnished by the assignor, and the obligation to give it does not seem to arise until the inven- tory is made as directed. When the assignor omits or refuses to make the inventory, a case is presented for which, in reference to the bond of the assignees, no provision is made, and upon a strict construction of the statute no bond could be exacted in such a case, because the contemplated inventory is not given. The assignees, nevertheless, would not only then have the right themselves to make the inventory, but to invoke the power of a court to assist in its preparation. An inchoate right to the prop- erty would in the mean time vest in them for the purposes of the trust (Juliand v. Ilathbone, 39 N. Y., 369), although they would not be empowered to dispose of it until the required bond was given. The object of the inventory is to aid in determining the amount of the bond to be given. It seems, therefore, taking all the pro- visions of the act of 1860, and amendments, into consideration , that the omission to execute and file a bond would not, per se, VON HEIN v. ELKUS. 519 FIBST DEPARTMENT, OCTOBER TEBM, 1876. invalidate an assignment ; and such appears to have been the decision in the Court of Appeals in the case of Thrasher v. Bent- ley (59 N. Y., 649), the report of which is, however, meagre and unsatisfactory. It seems to be decided also in that case that the common-law right to make an assignment existed, even though by operatiou of the bankrupt law the statute of 1860 was suspended ; but the error of this view arises from the fact that the statute regu- lates the exercise of the right, and both must fall or stand together. The Court of Appeals had already held that this was the effect of the statute, because it was declared that the omission to acknowl- edge the assignment, and to have the proof thereof certified before delivery, in accordance with that statute, rendered it void. (Jul- land v. Rathbone, 39 N. Y., 369, supra.) That proceeding was not necessary by the common law. The Court of Appeals has also recently determined a mooted question, namely, whether the effect of the provisions of the bank- rupt law relating thereto had not suspended the right to make an Assignment for the benefit of creditors, and in favor of the right, provided the assignment be one without preferences, and it be made without intent to defraud creditors. (Haas v. O'Brien, MS., not yet reported.) * In this case we have therefore the necessary elements to sustain the assignment made. It is not per se void. It is not void because of the omission to file the necessary bond. It is not void because it was executed in good faith, and contains no preferences. The plaintiff did not, therefore, by virtue of his appointment as assignee in bankruptcy, acquire the right to pos sess the property. He could have applied, doubtless, to compel the giving of the bond, or the surrender of the property, if one were not given, because, as we have seen, the right to appropriate the property was not absolute until the bond was given. (Act of 1 860, chap. 348, 3 ; Juliand v. RatKbone, supra.} In Mayer v. Ilttlman (1 Otto, 496), the Supreme Court of the United State* he.i that an assignment by an insolvent debtor of his property to trustees, for the actual and common benefit of all his creditors, is not fraudulent ; and that when executed rix months before proceedings in bankruptcy are taken against the debtor, it cannot be assailed by an assignee in bankruptcy subsequently appointed. The court in the same case say that such an assignment, even though executed within six months of the filing of the petition, is not void, but decline to express any decided opinion as to whether or not it is voidable. f RKP. 520 NORTON v. MACKIE. FIRST DEPARTMENT, OCTOBER TERM, 1878. For these reasons, we think the order appointing the receiver was erroneous and should be reversed, with ten dollars costs and the disbursements of the appeal, with liberty, however, to renew the application for the appointment of a receiver upon further and proper proof. DAVIS, P. J., and DANIELS, J., concurred. Order reversed with ten dollars costs and disbursements, with liberty to renew application for the appointment of a receiver upon further and proper proof MARGARET R. NORTON, APPELLANT, v. ROBERT MACKIE AND SIMON F. MACKIE, RESPONDENTS. Security for costs Resident aliens- fhe statute requiring non-residents to give security for costs in actions brought by them, does not require such security to be given by aliens residing in this State, unless such residence is shown to be merely temporary. APPEAL from an order requiring the plaintiff to file security for costs as a non-resident. Dennis McMahon, for the appellant. James K. Hill, for the respondents. BEADY, J. : The plaintiff in this action, if a resident of this country, could not register her vessel as the owner of a British ship unless a member of some British factory or agent for or partner in a home copart- nership actually carrying on trade in Great Britain or Ireland. (Abbott on Shipping [7th Am. ed.], page 83.) The affidavit of the plaintiff, disclosed on the motion, may be regarded as a declaration that she still continued to be a British subject, and that might be although her residence was in the State of New Y"ork. She would NORTON y. MACKIE. 521 FIRST DEPARTMENT, OCTOBER TERM, 1876. not have the right to avail herself of the privilege of her nation- ality in relation to ships, etc., during the continuance of her foreign residence, but if she did so it would not destroy the fact of such foreign residence. In other words, although the formula which the plaintiff went through in reference to her vessel may have been improper, because she did not disclose the fact of her residence out of the dominion of Great Britain ; nevertheless she may have been, at the time of her declaration, a resident of this city, and such seems to have been the fact. The statute in reference to a security for costs does not apply to resident aliens unless such residence is clearly temporary, which is not the case here. The plaintiff swears that she has resided in this city since June, 1875, and has not had any idea of making any other country or State her permanent place of residence ; and this gathers support from the fact that her husband is a native of this State, and a resident of this city, doing business here. The seeming inconsistency between her avowed residence here and her claim as a British subject for purposes which can be claimed only by residents of Great Britain or her colonies, except under special circumstances, which do not appear to exist herein, impressed the learned justice presiding at the Special Term and led him away from the real question involved, namely, that of residence. There can be no doubt that, residing with her husband in this city, without any intention to depart hence, or make any other place her residence, she was not within the purview of the statute. It cannot be questioned, either, that an alien resident, tempora- rily here, would be within its provisions. There are many old and permanent residents of this city who have not become citizens of this country, and have not, therefore, enjoyed the blessings of our government. They are not, however, for this reason, subjected, in the prosecution of their demands, to any extraordinary procedure. The order made in this action should, for these reasons, be reversed without prejudice to the right of the defendants to renew it, if the circumstances existing warrant it, or any new facts be developed which fortify the attitude taken by them. DAVIS, P. J., and DANIELS, J., concurred. Order reversed. HXJN VOL. VHL 66 522 McVEY v. CANTRELL. FIBST DEPARTMENT, OCTOBER TERM, 1876. MARY MoVEY, PLAINTIFF, v. MARY A CANTRELI^ DEFENDANT. JOHN G. 0. TADDIKEN, PLAINTIFF, v. MARY A. OAN- TRELL, DEFENDANT. Irrelevant and scandalous matter responsibility for insertion of. The responsibility for the insertion of irrelevant and scandalous matter in plead- ings rests upon the attorney preparing the same, and he should be charged with the payment of the costs of a motion to have such matter stricken therefrom. APPEAL from an order made at the Special Terra, directing that certain allegations should be stricken out of an affidavit as scandal- ous and impertinent. The plaintiffs in these cases having recovered judgment herein, defendant, upon an affidavit setting forth the fact of the recovery of the judgment, the giving of undertakings upon appeals therefrom and the justification of the sureties thereto, and the intention of the defendant to obtain a loan from an insurance company, moved to have the premises upon which the loan was to be made relieved from the lien of the judgment. The attorney for the plaintiff made an affidavit to be read in opposition to the motion, containing defamatory matter. This matter was, upon the application of the defendant, stricken out as " scurrilous, irrelevant and defamatory, and as having been maliciously and unnecessarily inserted." H. H Morange, for the respondent. D. T. Robertson, for the appellant. BRADY, J. : The matter which was stricken out by the order appealed from \vas irrelevant, impertinent and scandalous. It is not necessary to discuss that phase of the appeal. Being of the character described, the responsibility of its insertion rests upon the appellant's attor- ney, and not upon the client. It is the duty of the former to McVEY v. CANTRELL. FIRST DEPARTMENT, OCTOBER TERM, 1876. observe strictly the rules, which are well defined and which ha must be supposed to understand, in regard to such matter. It. is not necessary, therefore, to discuss this feature of the appeal. The rule is settled by a series of decisions ; but if it were not its pro- priety springs so naturally from the relations of attorneys and counselors to the courts and to suitors and to each other, that it requires nothing more than a statement of it to make it apparent and just and indispensable to the preservation of the dignity of the courts. The responsibility devolving upon the attorney, it was proper that the payment of the costs awarded should be made by him, and it is equally just that the costs of this appeal should be borne by him. The only duty for this court to perform is, there- fore, to order the affirmance of the order, with ten dollars costs and the disbursements of this appeal, to be taxed and to be paid by the appellant's attorney. This opportunity to censure the habit of placing upon the tecords of this court scurrilous or scandalous matters cannot be overlooked. It is regarded as reprehensible, highly so, and it is to be hoped, for the honor of the profession, that it may never again be necessary for this court thus to express itself. The occa- sions are rare on which the officers of the court so far forget them- selves, but legal ethics will not prevail in this regard until we can say they never do. It does not promote the ends of justice or contribute to the strength of a lawyer's advocacy, to indulge in personalities, in writing or by speech, and the omission of both adds to his repu- tation and dignity. Order affirmed, with ten dollars costs and the disbursements of this appeal, to be paid by the appellant's attorney within twenty days after taxation and service of a copy of the order to be entered herein. DAVIS, P. J., and DANIELS, J., concurred. Orders affirmed, with ten dollars costs and disbursements, to be paid by the appellant's attorney within twenty days after taxation and service of copy of order to be entered herein. 524 HO WELL y. VAN S1CLEN. FTBST DKPAKTMBNT, OCTOBER TKHXI, 1876. ALEXANDER J. HOWELL, RESPONDENT, v. HENRY K. VAN SICLEN, AND OTHERS, AS EXECUTORS, ETC., APPELLANTS. THE SAME v. THE SAME. Ootti judgment reversed on appeal, " costs to defendant to abide event " only affeett costs of appeal. Upon appeal from a judgment recovered by the plaintiff a new trial was granted, "with costs to the defendant to abide the event." Plaintiff having recovered a judgment upon the new trial, taxed his costs for both trials. Held, that he was entitled so to do ; that the order of the General Term only deprived him of the costs of the appeal. APPEAL from aii order of the Special Term affirming a taxation of costs by the clerk. The case was twice tried, resulting in a judgment each time in favor of the plaintiff. Upon an appeal from the first judgment a new trial was granted 44 with costs to the defendant to abide the event." Upon the taxation of costs after the second trial, plaintiff was allowed to include the bill of costs taxed upon the first trial. The defendant, upon the taxation, " objected and excepted to each and every item in the foregoing bill of costs taxed on the first trial, on the ground of the language of the judgment of reversal, that only defendants should have costs on the new trial, if successful." There was no question as to the propriety of the taxation, unless the order of reversal, by its terms, precluded it. Oeo. W. Van Siclen, for the appellant. E. I. Spink, for the respondent. BBADT, J. : When a new trial is ordered the costs of the appeal are in the discretion of the court. (Code, 306 ; Ayers v. Western Railroad Co., 49 N. Y., 660 ; Sturges v Spoford, 58 id., 103.) The costs in the action are a statutory right dependent upon suc- cess, except when they are as in certain cases designated (Code, HOWELL v. VAN SICLEN. 525 FIRST DEPAHTMENT, OCTOBER TERM, 1876. 306, supra), in the discretion of the court. When this court granted a new trial with costs to the defendant to abide the event, it was the costs of the appeal and not the costs in the action which were allowed. The plaintiff having succeeded was entitled to costs, but the defendant having reversed the judgment was allowed costs of the proceeding taken by him for that purpose, provided he succeeded in the action. The plaintiff could not have them in any event, because he did not maintain his judgment. The defendant was not, when the appeal was taken, entitled to costs ; he had not succeeded in the action ; and the presumption must be against him, if any be indulged in, where the reversal of the judgment rests upon some error committed upon the trial. He was not the suc- cessful party, and still, insisting upon his non-liability for the plain- tiff's claim, he demanded a new trial. He was again unsuccessful, aud the plaintiff became by the operation of the statute entitled to the costs in the action, except the costs of the appeal. These costs were awarded him, and properly. He was the successful party. The provision in the Code allowing a party to offer to let the plain- tiff take judgment for a sura named, was designed to protect him against unnecessary litigation ; and where he does not avail him self of it the burden imposed by the controversy is voluntarily assumed. He cannot complain if proceedings which he has ren dered necessary by his refusal to pay or adjust a legal demand are attended with expenses which he is required to pay. We think, for these reasons, that the appeal from the taxation was not well taken, and that the order appealed from relating thereto should be affirmed with ten dollars costs and the dis- bursements of this appeal. We have examined the appeal from the order making an allowance of five per cent on the amount of the judgment, and which is about $215. We think the various proceedings in this action, including a commission and two trials, will warrant the allowance made. We think the order in that respect should also be affirmed, with ten dollars costs and the disbursements of the appeal. DAVIS, P. J., and DANIELS, J., concurred. Orders affirmed with ten dollars costs and disbursement* 526 WARD v. JAMES. FIRST DEPARTMENT, OCTOBER TERM, 1876. WILLIAM WARD, RESPONDENT, v. SARAH JAMES, IMPLEADKD WITH OTHEB8, APPELLANT. fbredoture tay of proceedings adjournments auctioneer's fees referee* feet. Where, after a referee has been appointed to sell real estate, in pursuance of a judgment of foreclosure, and a notice of sale has been duly published, the defendant serves an undertaking to stay proceedings upon appeal, in pursuance of section 341 of the Code, the plaintiff is not required to abandon the pro- ceedings instituted by him, but may adjourn the sale until it can be deter mined whether or not the sureties will justify. No fees can be allowed to an auctioneer for services rendered upon the adjourn- ment of a sale by a referee. A referee is only entitled to receive the same fees for selling real estate, as by law is allowed to a sheriff. APPEAL from an order of the Special Term allowing certain costs and disbursements, and directing the same to be paid to the appellant. Edward D. James, for the appellant. Ko appearance for the respondent. DAVIS, P. J. : Costs and fees as between parties to an action, are the creatures of statute. Where no statutory right to charge or allow them is shown, no legal right exists. (Downing v. Marshall, 37 N. Y., 380.) The question in this case is not, therefore, what the referee ought to have for his services and disbursements, but what the law allows ; and the court is bound to administer the law as it is found to be declared by statute. This was an action for the foreclosure ul a mortgage. The plaintiff recovered a judgment directing a sale. A referee was appointed to make such sale, who prepared and inserted an advertisement of sale in the Daily Register. The defendant served notice of appeal from the judgment, and pro- cured a judge's order fixing the amount of security for the purpose of staying proceedings. She gave an undertaking with two sure- ties in the amount so fixed, accompanied by the affidavit of the WAKD y, JAMES. 527 FIRST DEPARTMENT, OCTOBEU TERM, 1876. sureties that they were each worth double the amount specified in the undertaking, as required by section 341 of the Code. These proceedings were completed on the day before the day fixed in the notice, for sale, and were served on the plaintiff's attorney. The referee attended with an auctioneer for the purpose of making sale, but, on being served with a copy of the notice of appeal and undertaking, he adjourned the sale for one week, and afterwards made three further adjournments, all of which were advertised iii the Register, and then the proceedings were dropped. The affida- vit shows that these several adjournments were made at the direc- tion of the plaintiff's attorney, for the purpose of giving the defendant an opportunity to perfect her undertaking, by the justi- fication of the sureties, or of other sureties, the first having failed to justify. Section 341 of the Code gives the plaintiff the right to except to the sureties in the undertaking within ten days after notice of the appeal ; and provides that unless they or other sureties justify, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. As steps to justify before the judge were taken in this case, it is fair to presume that due exception to the sufficiency of the sureties was made by the plaintiff's attorney. Under such circumstances we think the right to adjourn the sale until it should be determined whether or not the sureties would justify, properly existed. The stay was a contingent one, and would, by the provisions of the Code, have ceased upon failure to justify ; and the plaintiff' was not required to abandon the steps already taken before notice of the appeal was given, until the sureties had completely justified. We think that reasonable adjournments may be had in such cases until the justification shall be complete. In our opinion, the expenses of advertising were properly chargeable. Their amount, however, is regulated by statute ; and if not charged, as defendant alleges, in accordance with the statute, she is entitled to have them taxed, and reduced to the amount fixed by statute. The charges for auctioneer's fees on adjourning the sale are not allowable No statute gave such fees at the time these proceedings were had. The only way in which auctioneers could be compensated upon such sales was by making their fees a part of the terms of sale, tc be paid by the purchasers ; and if that course was not abused tc 528 MYER v. PEOPLE. FIRST DEPARTMENT, OCTOBER TERM, 1876. the prejudice of defendants, there would be no reason for the court to interfere. In this case there was no sale, and no statute is pro- duced to us showing that fees for adjournments by auctioneers can be charged in such cases. A gross sum of fifty dollars was allowed to the referee. Doubt- less, this was no more than a fair compensation, but its allowance was erroneous. The court had no power to award it. This court had occasion to examine the question of referees' fees in Innes v. Purcett (2 N. Y. S. 0. [T. & 0.], 541). Where referees' fees are in dispute they are the subject of taxation. It follows from these views, that the order of the court below must be reversed, but, under the circumstances, without costs ; and an order entered directing that the costs claimed in this case be adjusted by the clerk of the court, in accordance with the pro- visions of the statute and the decision of the court in the case above referred to. DANIELS, J., concurred. Present DAVIS, P. J., and DANIELS, J. Order reversed without costs ; order entered directing that the costs claimed be adjusted by the clerk, in accordance with the pro- visions of the statute, and the decision of the court in the case referred to in the opinion. JOHN MYER, PLAINTIFF m EBEOE, v. THE PEOPLE OF THE STATE OF NEW YORK, DEFENDANTS IN ERROR. Writ of error what errors witt be considered on charge of judge. Upon the trial of the plaintiff in error for rape, the court refused to charge that he must have " accomplished his purpose in spite of the utmost reluctance and resistance on her part." The prisoner was convicted of an assault with intent to commit rape. Upon a writ of error to review this conviction, held, that as the refusal to charge, even if it were error, did not in any way affect the crime of which he was convicted, but only that of which he was acquitted it furnished no ground to reverse the judgment. MYER v. PEOPLE. FIRST DEPARTMENT, OCTOBER TERM, 1876. WBIT of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error of an assault with an intent to commit a rape. Wm. T. Howe, for the plaintiff in error. B. K. Phelps, district attorney, for the people. DAVIS, P. J. : The prisoner was indicted for the crime of rape. But one of the exceptions taken in the course of the testimony is urged upon our attention by the counsel for the prisoner. That is said in his points, to be found at folio 68 of the error book ; and on the points is stated as follows : " The witness John Koehler was asked if he had had intercourse with this woman (meaning the prosecutrix). The court ruled out the question. This was clearly error." On referring to " folio 68 " no such question and no such ruling tire to be found. The counsel was there examining the witness as to the complainant's character. He asked : " Do you know this woman's character ?" The witness replied : "No, I don't." The counsel then asked: ''You have a good deal of intercourse with her?" This question was objected to and dropped, without ruling or exception. Of course in the absence of a ruling and exception, there is nothing for us to consider. But the question itself did not relate to sexual intercourse ; it apparently related to innocent general or business intercourse, from which knowledge of her general character might be derived. We have looked at all the exceptions taken in the course of the trial prior to the charge, although they are not pressed upon us in the points, and find none of sufficient importance to justify a reversal. At the close of the charge of the court, the counsel for the pris- oner asked the court " to charge the jury, in order to find the prisoner guilty of the charge, they must find that he accomplished his purpose in spite of the utmost reluctance and resistance on her part." The court responded : " If she consented, the criminal character of the offense is done away with ; " and afterwards, on being asked if he declined to charge as above requested, the court answered, " Yes, sir ; " and an exception was then duly taken. HUN VOL. VIII. 67 530 MYER v. PEOPLE. FIRST DEPARTMENT, OCTOBER TERM, 1876. This refusal to charge is the alleged error chiefly relied upon by the prisoner's counsel. But in this case, although the prisoner was indicted for rape, the conviction was of an assault with intent to commit rape, and for that crime judgment was pronounced upon him. The request related to a crime of which the prisoner was not convicted ; and even if the refusal would have been clear error had the prisoner been convicted of rape, it is not perceived that any error can be alleged when the conviction is of an assault with an intent to com- mit rape. The prisoner cannot be said to have been legally injured in any degree by such a refusal. The charge requested would have been entirely inappropriate if the indictment had been for an assault with intent. It would in such a case have been gross error to have said, that to find the prisoner guilty, the jury must be sat- isfied that he accomplished his purpose in spite of the utmost reluctance and resistance on the part of the female assaulted. As we are considering a conviction and judgment of assault with intent to commit rape (which necessarily in this case, involves an acquittal of the crime of rape), we must confine ourselves to such errors, if any were committed, as can be said to have injuriously affected the prisoner in respect to the crime of which he was con- victed, without regard to those which affected the crime of which he was acquitted. If a prisoner who is indicted for murder, be convicted of assault and battery, he cannot allege on error that the court erroneously defined the crime of murder, or the several degrees of manslaughter. We do not therefore, pass upon the question whether there was error in the refusal of the court to charge as requested, or in what was said in response to the request ; nor whether exceptions were properly taken to raise the question of error which might arise by coupling the response with the request. There are no legal grounds for disturbing the conviction and judgment, and they are therefore affirmed. BEADY and DANIELS, JJ., concurred. \ Judgment affirmed. DEVLIN v. SHANNON. 531 FIRST DEPARTMENT, OCTOBEB TEBM, 1876. JAMES DEVLIN, PLAINTIFF, v. JOHN SHANNON AND OTHERS, DEFENDANTS. THE SAME v. THE SAME. Inquest? Mvle 36 Chancery practice. Rule 36, authorizing inquests to be taken in cases in which no sufficient affidavit of merits has been made and served, does not apply to actions in equity. In an action to foreclose a mortgage, an inquest taken by the plaintiff upon defendants' failure to file an affidavit of merits, is irregular, and a judgment entered thereon will be set aside. APPEALS from orders denying motions to open defaults in the above entitled actions. William A. Comsen, for the appellant. Jacob A. Gross, for the respondent. DAVIS, P. J. : These were actions in equity brought to foreclose mortgages of leasehold premises owned by the appellant Shannon. The appel- lant interposed answers alleging the defense of usury. No affida- vit of merits having been filed under rule 36, the plaintiff moved the cases out of their order at the March Special Term, and took judgment by default. The defendants moved to open the defaults for irregularity, which motion was denied. These appeals are brought from the order of denial. The defaults were irregularly taken. Affidavits of merits to prevent inquests under rule 36 are not applicable to actions in equity, triable by the court. That rule does not extend inquests, in default of such affidavits, to actions in equity, but simply provides that " inquests may be taken in actions out of their order on the calendar, in cases in which they were heretofore allowed, * * * provided a sufficient affidavit of merits shall not have been filed and served." " Inquests " were, and still are, in use only in actions at law. They were never applied to suits in equity ; but, under the ninety-first rule of the Court of Chancery, mortgage cases of the fourth class were 532 DEVLIN v. SHANNON. FIRST DEPARTMENT, OCTOBER TERM, 1876. entitled to a preference over any other cases of that class, unless the defendant, before the case was heard, filed with the register or clerk an affidavit that he had a good and meritorious defense, and that his answer was not put in for the purpose of delay ; the filing of which affidavit must have been noted on the calendar. The fourth class of actions were those to be heard upon pleadings, or pleadings and proofs. There is really no analogy between the pro- ceeding provided for by the ninety -first rule of chancery, and inquests regulated by the thirty-sixth rule in courts at law ; and it seems very manifest that the thirty-sixth rule has not preserved the old chancery practice. If however it had, that proceeding was not taken in these cases, and the court, and counsel for the plaintiff, appear to have acted solely under the thirty-sixth rule of the court. (See Barb. Ch. Pr., vol. 2, p. 182, note 24; 3 Wait's Pr., 44, 45 ; Van Sant. Pr., 332.) The plaintiff did not move upon affidavits, or to advance the causes for trial, on the ground that the defenses were interposed for delay merely, or upon any other equitable ground. The action of the court in allowing the inquests was irregular, and the defaults should have been opened. We do not feel at liberty to try the merits of the cases upon affidavits interposed to oppose the motion. To do so is merely to hear one side upon that question ; but we are strongly impressed with the idea that no substantial defenses exist. The appeals are properly taken, because the inquests were irregular ; and it was a matter of right to the defendant that the defaults should be opened. We think, however, in these cases, as sales have taken place, and purchasers have entered into possession and made repairs and improvements, the better course is to open the defaults so far as to allow the trial of the issues at Special Term, the present judgments to stand, and the question whether they should be vacated to depend upon the result of such trial. The orders below should be reversed, and an order entered to this effect, with ten dollars costs of one appeal and disbursements. DANIELS, J., concurred ; BBADT, J., concurred in the result. Orders reversed and order entered according to opinion, with ten dollars costs PEOPLE u. CONNER. 533 FIRST DEPARTMENT, OCTOBER TERM, 1876. THE PEOPLE EX BEL. LOUISA DOUAI WEHLE, APPELLANT v. WILLIAM C. CONNER AND OTHERS, RESPONDENTS. Sheriff's bond action upon when permitted Statute mandatory permissive. The provision contained in section 3 of title 5, chapter 8, part 3 of the Revised Statutes, that upon due proof of any default or misconduct of the sheriff in his office " the court shatt order " his official bond to be prosecuted, is not mandatory but permissive, and the court will not allow such action to be brought unless it believes it to be just and proper so to do. Where, upon an appeal to the Court of Appeals from a judgment of the General Term, affirming a judgment recovered against a sheriff for a failure to return an execution within the time allowed by law, the sheriff gives the bond required by the Code to stay all proceedings upon the judgment pending such appeal, the court will not allow an action to be brought upon the official bond of the sheriff until such appeal be decided. APPEAL from an order vacating an order, allowing an action to be brought upon the official bond of the sheriff of the city and county of New York, for a failure to return an execution within the time allowed by law. i Charles Wehle, for the appellant. If. W. Bookstaver, for the respondents. DANIELS, J. : It appears by the papers before this court on the present appeal, that the relator, as plaintiff, recovered two judgments in the Superior Court of the city of New York, on which executions were issued to the defendant William C. Conner, then and still the sheriff of the county of New York. The sheriff neglected to return the executions within the time prescribed by law. For such default an action was commenced, and judgment recovered against him for the amount due upon the executions. He appealed to the General Term of the Superior Court, where the judgment was affirmed ; and he has since appealed to the Court of Appeals, giv- ing upon that appeal the undertaking required to stay proceeding! for the collection of the judgments. 534 PEOPLE v. CONNER FIRST DEPARTMENT, OCTOBER TERM, 1876. Upon these facts, leave to sue the sheriff 's bond was denied ; and that has been objected to as erroneous, because of the direc- tion contained in the statute, that upon proof of his default, " the court shall order that such bond be prosecuted.'' But while the terms used in the statute are, in form, mandatory, it is evident, from the fact, that an action cannot be maintained without leave of the court ; that they were not designed to be so construed and applied. If the party having a right to redress, of the description mentioned in the statute, had been intended to be invested with an absolute and unqualified right to sue the bond, no precedent application to the court for leave to do so would have been rendered necessary, as it has been. (3 K. S. [5th ed.], 779, 1, 3.) The object of requiring an application to be made for leave could have been nothing less than to require the court, before it should be given, to make such an investigation into the case alleged as would enable it to determine whether the suit would be just and proper. The power to give the leave implied the existence of authority to deny it. The proceeding provided for was evidently intended to protect the sheriff and his sureties against needless actions ; and, at the same time, to allow all such suits upon the bond as should appear to be reasonably necessary. By the judgment recovered in the action against the sheriff, a recovery has been had for the amount he has become liable to pay. And that has been so far secured, in the manner provided for by the Code of Procedure, as to stay the plaintiff's proceedings for its collection until after a decision shall be made upon the sheriff's liability by the Court of Appeals. By a suit upon the bond nothing more could, for the present, be accomplished. The unset- tled point of actual liability would still be an open subject of liti- gation, following the same course as the suit against the sheriff alone. It would be unreasonable and oppressive to subject him and his sureties to another action, which would necessarily be attended with precisely the same result as the one now in course of prosecution. And it would violate the policy and spirit of another provision of the statute, in terms requiring the remedy to be exhausted against the sheriff before redress can be secured from his sureties. (3 R. S. [5th ed.], 781, 15.) That can be as com- pletely done in the action now pending as it could be by a suit PEOPLE v. CONNER. 535 FIRST DEPARTMENT, OCTOBER TERM, 1876. upon the bond itself. And as the plaintiff elected to pursue that remedy, it is no more than just that its final result shall now become known before leave is given to sue the bond. If the judg- ment shall be affirmed, the plaintiff will be very likely to secure satisfaction for her demand by means of the undertaking given upon the appeal even if the sheriff shall prove to be, as it is alleged he is, insolvent. It has been urged that the sureties in that under- taking are not of sufficient ability to pay the judgment in case of its affirmance. But as they justified in the amount required to render the undertaking effectual as a stay, there seems to be no suf- ficient foundation for that suspicion. The proceeding already instituted for the purpose of securing redress, and now before the court of last resort, furnished a very good reason for the denial of the application made to sue the bond. Another suit for the same end cannot be necessary until a final decision shall be procured, settling the rights and liabilities of the parties upon the appeal now pending. It could not have been designed by the statute that needless litigation should be sanctioned and directed by the court. And that would surely be done by allowing the bond to be, at this time, made the subject of an action to collect the money, which it is probable will be secured in the suit so nearly terminated. The terms of the statute, though in form mandatory, must have been intended to invest the court with power to be exercised only as it should be required to promote the obvious ends of justice; and that has not infrequently been held to be the case. Where similar language has been used by the legislature, the word " may " has often been held to be the equivalent of " must " or " shall," according to the subject-matter affected by the statute. And the word " shall " has also been so far restrained as to result in the creation of simply a discretionary authority. (Mal- com v. Rogers, 5 Cow., 188 ; Matter of Douglass, 58 Barb., 174 ; In re N. Y. Prot. Epis. Public Schools, 47 N. Y., 556 ; Willetts v. Ridgway, 9 Ind., 367 ; Wheeler v. City of Chicago, 24 111., 105.) And by subjecting the application to the action of the court, it must have been intended that the term should be under- stood as controlled by a like restraint, as it has been used in the statute now before the court. 536 PEOPLE v. COMMISSIONERS OF TAXES, ETC. FIBST DEPARTMENT, OCTOBER TERM, 1876. It has been further urged, in support of the appeal, that the stat- ute declaring that for any violation of the provision directing that the sheriff should execute and return process delivered to him etc., according to the command thereof, he shall be liable to an action at the suit of the aggrieved party, in addition to any other fine, punishment or proceeding authorized by law, requires the applica- tion made to be successful. (3 R. S. [5th ed.], 739, 98.) But there is clearly nothing in this provision which would render the sheriff liable to the different proceedings mentioned at the same time. They may all be prosecuted until satisfaction shall be finally successively secured. But in the exercise of the equitable authority of courts of justice, they should not all be allowed to be carried on at the same time when it is highly probable, as it appears to be in this case, that the one first instituted will result in satisfying the entire demand of the party entitled to redress. The order appealed from should be affirmed, with ten dollars costs and the disbursements on the appeal. DAVIS, P. J., and BBADY, J., concurred. Order affirmed, with ten dollars costs and disbursements. THE PEOPLE EX BEL. THE GALLATIN NATIONAL BANK, FREDERICK D. TAPPAN AND OTHERS, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, DEFENDANT.* National bank Taxation Actual, not par value of stock, the basis of Surplus, The actual and not the par value is the standard to be adopted by commissioners of taxation, in assessing the value of shares of the capital stock of a national bank Such valuation is not affected by the fact that a portion of the capital of the bank is invested hi United States bonds, or by the fact that the bank is required by law to accumulate and retain a reserve. * Decided November 15, 1876. PEOPLE v. COMMISSIONERS OF TA3LES, ETC. 587 FIRST DEPARTMENT, OCTOBER TERM, 1876. The actual value of the stock, diminished by the proportionate value of the real estate owned by the bank, furnishes the proper sum upon which to assess the tax. WRIT of certiorari to inquire into the validity of a tax imposed on shares of the Gallatin National Bank. The Gallatin Bank is a national banking association organized in conformity with the act of congress passed 3d June, 1864, and pursuant to an act of the legislature of this State passed 9th March, 1865. (Chap. 97.) The bank had been previously organized under the general bank- ing law of this State, but on reorganization it surrendered its charter as required by the enabling act, and in conformity with section 16 of the act of congress it at once invested one-third of its capital in government bonds ; and in conformity with section 33 it has reserved from its earnings an accumulated surplus of $300,000. The bank's assets were as follows : Capital $1,500,000 Surplus 300,000 Premium on $591,000 United States bonds, over 20 per cent 118,200 $1,918,200 This amount divided among the stockholders would give, per each share, sixty-three dollars and thirty cents. They were assessed by the commissioners at fifty-nine dollars each. The assessed value of the real estate of the bank was $50,000. The par value of each' share, fifty dollars. The commissioners of taxes, in determining the tax to be imposed, included in the estimate of value the surplus and the reserve, deducting the assessed value of the relator's real estate. The president of the bank objected and offered proof of the above facts. The commissioners, notwithstanding, made the assessment which the relator now seeks to have corrected. D. D. Lord, for the relators. The assessment violates the clauses in the act of congress, 3d June, 1864, and in the State enabling act of 9th March, 1865, prohibiting an unfavorable discrimination against national banks. The intention of these clauses was not HUN VOL. VIII. 68 538 PEOPLE v. COMMISSIONERS OF TAXES, ETC. FIRST DEPARTMENT, OCTOBER TERM, 1876. limited merely to requiring that the taxes should be at the same per centage for both kinds of banks, but that no unfair discrimina- tion should be made against the national banks, whether in the rate of tax, assessment of taxable value, or otherwise. (Austin v. Barton, 14 Allen, 365.) This prohibition is violated even when one uniform rate of taxation is applied to both classes of banks, if their constitutions are so different that it acts favorably on one class and unfavorably on the other. Such a rule, though literally uniform, might drive the national banks out of existence as effectu- ally as an unequal assessment of the taxable value, or an unequal per centage of tax imposed. In the present case the rule men- tioned is very unequal and injurious to the relators. The surplus and the premium on government bonds are included in the assessed value of the shares. They enter into the limit of value, stated by Mr. Tappau, which it appears by the return formed the basis of ihe assessment made by the commissioners. The retention of these bonds as well as of the surplus is not, by the voluntary actiou of the bank, for its own profit. So far as relates to the bonds the bank's interest would be promoted by selling them, and the surplus also might advantageously be divided amongst the shareholders. The bank is compelled to retain them from motives of public policy. As the State banks are not under a similar obligation, the rule adopted by the commissioners compels shareholders in national banks to pay on a surplus, while the shares in the State banks are not taxable above the par value, except at the election of their owners. Hugh L. Cole, for the respondents. The actual value and not the par value, where the two do not coincide, is the stand&rd to be adopted by the commissioners in assessing the value of shares of the capital stock of a national bank upon the stockholders thereof. (Chap. 761 of the Laws of 1866 ; People v. The Assessors of Albany City, 2 Hun, 583 [1874] ; Hepburn v. The School Directors of the Borough of Carlisle, Pennsylvania, 23 Wall., 480 [1875].) The stockholders cannot avoid taxation on the actual value of their stock by the fact that a part, or even the whole, of the capital stock of the bank was invested in United States bonds. ( Van Allen v. The Assessors, 3 Wall., 573 ; The People v The Commissioners > 4 id., 244.) PEOPLE v. COMMISSIONERS OF TAXES, ETC. 539 BBADT, J. : The actual value of the shares of the relators' stock is the propel standard in assessing the tax to be paid. The par value does not control. (Laws 1866, chap. 761, vol. 2, page 1647 ; 1 Rev. Stat., 393, 17.) It was the duty therefore of the respondents to ascertain and act upon the true value of the stock as they have done. (People v. The Assessors of Albany City, 2 Hun, 583.) The provision, that the tax so assessed shall not exceed the par value, in the enabling act of congress of 9th March, 1865, does not affect this principle. The impost may be upon a sum exceeding the par value when that sum represents the actual value of the share. The precise question is settled by the highest authority. (Hep- burn v. The School Directors of the Borough of Carlisle, Penn., 23 Wall., 480.) The only restriction is, that the share shall not be taxed at a greater rate than is imposed upon other moneyed capital in the hands of individuals of this State. This limitation is not affected by the fact that a part of the capital stock of the bank is invested in bonds of the United States ( Van Allen v. The Assessors, 3 Wall., 573 ; The People v. The Commissioners, 4 id., 244), or by the fact that the bank is obliged by law to accumulate a reserve. The respondents, in determining the tax to be imposed, adopted a standard of value founded upon the statement of the relators' president, and ascertained by deducting from such value the proportionate share of the assessed value of the relators' real estate. The reserve, which is a part of the capital of the bank and the surplus as well, were properly included in the estimate of value. Both contribute to the value of the shares, and are necessarily, therefore, constituent elements of such value. The interest of the shareholder entitles him to participate in the net profits earned by the bank in the employment of its capital, during the existence of its charter, in proportion to the number of his shares ; and upon its dissolution, or termination, to his proportion of the property *hat may remain of the corporation after the payment of its debts. This is a distinct, independent interest or property held by the ehareholder, like any other property that may belong to him, and, we add, of course subject to taxation. (Per NELSON, J., in cases .;. 3 and 4 Wall., supra.) It is quite apparent from these adjudi- 540 PEOPLE v. COMMISSIONERS OF TAXES, ETC. FIRST DEPARTMENT, OCTOBER TERM, 1876. cations and the principles enunciated by them that the respondents have acted properly, and that the writ must be dismissed with costs. Present DAVIB, P. J., BRADV and DANIELS, JJ. Writ dismissed. MEMORANDA OF ELIZABETH DUSENBURY AND MARY M. DE GUERRE, RESPONDENTS, v. PATRICK OALLAGHAN, IMPLEADED WITH OTHEB8, APPELLANT. Fraudulent foreclosure Action to recover damages against fraudulent purchaser at tale Release by plaintiff of all interest in property to person acquiring title from such purchaser No defense to action Payment when third person relieved from liability by Covenants of seizin and warranty breach of. APPEAL by the defendant Patrick Callaghan, from an order denying a motion for leave to file and serve a supplemental answer in this action, setting up as new matter : First. A conveyance of the property and premises in question by the defendants Lehmaier and wife to Jonathan Hanson and Jonathan Hanson, Jr., dated on or about December 16, 1872, and recorded on or about January 4, 1873. Second. A conveyance of the property and premises in question by Jonathan Hanson and wife, and Jonathan Hanson, Jr., and wife, to Thomas Handibode, dated on or about March 8, 1873, and recorded on or about March 14, 1873. Third. A deed of release of the property and premises in ques- tion from the plaintiffs and their mother, the widow of William A. De Guerre, deceased, to Thomas Handibode, dated on or about April 19, 1873, and recorded April 21, 1873. Fourth. The consideration paid by said Handibode for such deed of release, and the amount thereof, or for such other or further relief in the premises as may be just and equitable. Also an appeal from a judgment for $12,964.03 in favor of the plaintiff against the defendant Callaghan. 542 DUSENBURY . CALLAGHAN. FIRST DEPARTMENT, OCTOBER TERM, 1876. The action itself was originally brought by the plaintiffs, who are the daughters of W. A. DeGuerre, deceased, to redeem the premises on the south-west corner of Third avenue and One Hun- dred and Twenty-seventh street, fifty feet on Third avenue and o..e hundred feet on One Hundred and Twenty-seventh street, from the foreclosure of a mortgage of $1,000, and a sale thereunder, which mortgage was foreclosed by and under the direction of the defendant Callaghan ; and also to charge the defendant Callaghan, as an equitable and constructive trustee, for the value of the said premises, less what he had paid thereon, on the ground that he had conspired and colluded with their attorney and guardian ad litem to defraud them, by controlling the foreclosure, and drafting and arranging the terms of sale so as to destroy all competition, thereby purchasing and bidding in the property himself, at the foreclosure sale, for $3,100, while the real value of the same was $12,000. Stead and Lehmaier were made defendants, as subsequent grantees of Callaghan, and the Equitable Life Assurance Society, as a sub- sequent mortgagee for $15,000. After the commencement of this action against the other defend- ants, the plaintiffs became convinced that they should not be able to bring notice home to such defendants of the fraudulent acts of the defendant Callaghan, and they abandoned that portion of their claim for relief, which included the right to redeem, and prosecuted this action solely against the defendant Callaghan r claiming to charge him, as a constructive trustee, for the fraud alleged in the complaint, and subsequently proved on the trial, which occurred only the week after the decision of this motion, from which an appeal is here taken. The defendant Callaghan moved to set up by supplemental answer that the plaintiffs had, after the commencement of the action, released to one Handibode, a grantee of the property from the Hansons, to whom defendants had conveyed, with convenants of seizin and warranty, all their interest in the prem- ises, for the sum of $3,000; the deed providing that such release should not in any way be construed as affecting the personal claim of the plaintiffs and their mother against defendant Calia ghan, personally, as the same was set forth in the complaint here;-: DUSENBURY v. CALLAGHA^. 548 FIRST DEPARTMENT, OCTOBER TERM, 1876. The motion was denied, on the ground that the release was no defense to the defendant in this action. The court at General Term say : " It appeared upon the trial that the plaintiffs and their mother received $3,000, jointly, from the holder of the paper title, which was paid to them for a release to him of all interest in the land. This payment and the instrument obtained by it removed a cloud upon his title arising from assumed errors or irregularities in the foreclosure proceedings, and prevented the plaintiffs from asserting any claim to the land. The defendant, prior to the trial, sought to set up this fact by supplemental answer, but the motion made for that purpose was denied, upon the ground that it consti- tuted no defense. The defendant complains of this decision, and from the order made has appealed, as already suggested. The release which the defendant sought to interpose was given to the holder of the title without any concert of action between him and the defendant. It was procured, doubtless, to set at rest all questions about the title ; and obtaining it prevented an evic- tion by the plaintiffs, or surrender to them for paramount title, or any assault upon the title by them. The quasi owner bought hie peace, in other words. He had no remedy against the defendant on the covenant of seizin, for his grant was not from him. The defendant's covenant was broken, if at all, as soon as the deed from him was delivered ; and being then converted into a chose in action, did not run with the land or pass by the convey- ance of his grantee. (4 Kent [llth ed.], p. 555 ; Blydenburgh v. Cotheal, 1 Duer, 197, and numerous cases cited ; Bmgham, Admr., v. Weiderwax et aL, 1 Comst., 509 ; Mott v. Palmer, id., 564.) He could have no remedy on the warranty, because he prevented by friendly compromise any eviction or obligation to surrender the premises to the plaintiffs under their claim of title. (Ingersoll v Ball, 30 Barb., 392.) No action could be maintained without one of these elements, (Oreenvault v. Davis, 4 Hill, 643 ; Fowler v. Poling, 6 Barb., 165 ; Blydenburgh v. Cotheal, 1 Duer, 176, 196, and cases cited ; BeOdoe v. Wadsworth, 21 Wend., 120.) The result was that what- ever privity existed between him and the defendant was, in effect, extinguished, because it was created only by the covenant of war 544 DUSENBURY v. CALLAGHAN. FIRST DEPARTMENT, OCTOBER TERM, 1876. ranty running with the land, and which was ineffective because the necessary conditions to its enforcement could not arise upon any claim of the plaintiffs. The money paid could not be regarded, therefore, as paid in his interest or for his benefit, for aught that appears in the case. The holder of the title was a stranger, paying the money for a specific purpose, and not with any intention to relieve the defend- ant from any liability which he might have incurred. To be effectual, payment, if by a third person, must be made by him as agent for or on account of the one liable, and with the prior authority or subsequent ratification of the latter. (Atlantic Dock Co. v. The Mayor, 53 N. Y., 64, and cases cited.) The only advan- tage to grow out of the recovery in this case, on the assumption that it affords complete indemnity, would be a probable right in the payor to recover back the money he paid, as suggested in Bleakley v. White (4 Paige, 654). The justice was right, therefore, in denying the motion for leave to file a supplemental answer. We think it also proper to say that the mother of the plaintiffs, having a dower right in the property, and having reserved any right of action against the defendant Callaghan by the terms of the release mentioned, the plaintiff could not recover the whole value of the property in excess of what was paid by the defendant when he took the title, inasmuch as she had not joined in the action. This will not, however, prevent them from recovering their indi- vidual claims when established. Whether this defect can be cured by amendment or release it is not our province now to declare." The judgment was reversed, however, because of the judge at Special Term having, through an erroneous impression, discredited the statements of two witnesses. J. S. Bosworth, for the appellant. D. MoMahon and Samuel A. Noyes, for the respondents. Opinion by BRADY, J. ; DAVIS, P. J., and DANIELS, J., con- curred. Judgment reversed, new trial ordered, with costs to abide event , order appealed from affirmed, with costs. BRADLEY v. McLAUGHLIN. 545 FIRST DEPARTMENT, OCTOBER TERM, 1876. EDWARD BRADLEY, APPELLANT, v. SAMUEL MoLAUGH- LIN, RESPONDENT. Referee report of, on conflicting evidence Findings that evidence " leaves the mind in doubt " error Mistrial. APPEAL from a judgment in favor of the defendant, entered upon the report of a referee. This action was brought to recover the value of professional services alleged to have been rendered by the plaintiff, a physician, for the defendant and one of his grand- children. The referee, after finding that the plaintiff was a licensed and practicing physician, as alleged in the complaint, reported that, as to the other matters alleged in the complaint, he finds that the evidence leaves the mind in doubt as to whether services referred to therein were or were not rendered for the defendant, or at his instance and request, or that the defendant promised to pay for the same ; and, therefore, as to these matters, he finds that the plaintiff failed sufficently to prove the same. And, for a like reason, he finds that the evidence leaves the mind in doubt as to the matters alleged by way of counter-claim in the second branch of defendant's answer, and therefore defendant has failed to suf- ficiently prove the same. As matters of law, from the foregoing finding, the referee finds and decides that judgment must be given in favor of the defend- ant against the plaintiff for the dismissal of said plaintiff's complaint. The court at General Term say : "As the referee sat in the capacity of both judge and jury, his decision may be regarded as in the nature of a nonsuit of plaintiff, and, in that view, could not, perhaps, be objectionable in point of form, if rendered in a proper case. The course of the referee in that aspect is not one to be commended, however, because it is not safe for imitation, and is likely to lead to injustice. It devolves upon the court the duty to inquire whether there was not, as to some one or more of the allegations of the complaint, evidence which required the referee to pass upon the questions of fact by a finding of the facts , one way or the other. HUN VOL. VIII 69 546 BRADLEY v. McLAUGHLIN. FIRST DEPARTMENT, OCTOBER TERM, 1876. On looking into the case, we find that there was no failure on the part of the plaintiff to give evidence to support all of the allegations of his complaint. On the contrary, he made out, on his part, a clear and satisfactory case by his own testimony, on which, with the corroborating proof, he was entitled, beyond doubt, to findings and judgment in his favor; but the defendant came in with flat denials of every thing, by his own testimony, thus producing a plain conflict of evidence (or at least of test! mony), as to the facts alleged. If the case had been before a court and jury, there can be no doubt as to the course that must have been taken. The court must have sent the case to the jury to find the facts upon which the decision would depend ; and it would have been palpable error for the court to have nonsuited the plain tiff, because the jury could not agree as to the facts. Nor could the court have taken the case from the jury " because the evidence leaves the mind in doubt." The question had become one of credibility upon conflicting testimony, and had thus passed beyond the control of the court. The case could not be disposed of until the jury had settled the conflict by a finding of fact, one way or the other. So, it seems to us, that where there is an abundance of evidence before a referee to support the allegations of either side, and the only question is to which side he shall give credit, it is his duty to pass upon the facts, and find in one direction or the other, and not say, as in this case, the conflicting evidence " leaves the mind in doubt ; " and, therefore, I dismiss the complaint, because of my inability to solve the doubt. Before a jury, such a conflict is easily disposed of by a verdict against the party holding the affirmative; and that is a short mode of finding the facts. But before a referee under the Code, a more formal mode of finding the facts, by a report in writing, is requisite ; and it follows that in cases where conflicting evidence leaves the mind in doubt, it is the duty of the referee to find the facts adversely to the party holding the affirmative, and not to send up to the court a report of his inabil- ity to find them. We are therefore of opinion that the report of the referee is an improper and insufficient one, under the facts and circumstances of this case; and, as proper exceptions were taken we think the case ought to go back for a new trial on the ground of mistrial ; for the same reason, in substance, as a case stand* MARCKWALD v. OCEANIC STEAM NAV. CO. 547 FIRST DEPARTMENT, OCTOBER TERM, 1876. for retrial where a jury fail to agree because of conflicting evi dence." JE. T. ell 9 for the appellant. Briggs db Fellows, for th respondent. Opinion by DAVIS, P. J. ; DANIELS, J., concurred. Judgment reversed ; new trial ordered ; costs to abide event. FREEMAN D. MARCKWALD, PLAINTIFF, v. THE OCEANIC STEAM NAVIGATION COMPANY (LIMITED), DEFENDANT. Bill of exceptions Settlement of case presenting only questions of law insertion part of the losses. (Id., 22, 23.) In the case of Lamb v. Grover (47 Barb., 31 7), chiefly relied upon by the referee, Lamb agreed to furnish groceries to sell, in the village of Oakland, and to pay the rent of the store in which the goods were to be sold, and Adams agreed to sell the groceries for one-half of the profits on the sale of the goods. The referee found in that case, f hat the share of profits to be received by Adams was in payment ind in compensation for the services rendered by him in the busi- ness. In such a case it is clear that there was no partnership cre- ated by the agreement. The doctrine that persons cannot be partners as between each other, unless they agree to participate in the losses, is founded on the language of the judges in many cases, and in some is the apparent ground of the decision. (Parsons on Partnership, chap. 5, p. 41, note .) But the result of all the cases and the modern doc- trine seems to be, that the exemption from losses is a fact which, though not conclusive, is strong evidence that the party thus exempted is not an actual partner; and, taken in conjunction with other circumstances, may clearly show that fact. (See Parsons on Part., note #, supra Vanderburgh v. Hull & Bowne, 20 Wend., 70 ; Burckle v. Eckart, 1 Denio, 337 ; S. C., 3 Comst., 132 ; Ex parte Langdale, 18 Vesey, 301.) Lindley states as leading propositions in the law of partnerships as follows : " Prop. 2. Partnership is prima facie the result of an agreement to share profits, although nothing may be said about losses. 556 MUNKO y. WHITMAN. FOUBTH Di.rAKTME.NT, OCTOBER TEUM, 1876. " Prop. 3. Partnership is prima facie the result of an agreement to share profits ; although community of loss is stipulated against." (Liudley on Partnership, book 1, chap. 1, pp. 13, 17.) The fact reported in the case before us, and which the referee relies on as conclusive to show, of itself, that there was no part- nership, brings the case within the second proposition thus stated by Mr. Lindley, and affords prima facie evidence that the agree- ment between the parties did contemplate a partnership. There was much evidence bearing upon the question whether the intent of the parties was to create a partnership inter sese, and the referee should have determined and reported whether the share of the profits was simply intended as a compensation to the defend- ant for the time and services employed by him in the business, or whether, from the agreement to divide the profits, the usual result of the creation of a partnership followed. The fact that nothing was said about participating in the losses is only evidence on the question of the intention, and may, in conjunction with the other circumstances of the case, clearly establish that the parties did not intend to create a partnership. So, too, the assumption of a firm name, though affording strong evidence that a partnership was con- templated, and probably conclusive in favor of third parties, is not at all conclusive as between the parties themselves, who might, notwithstanding, lawfully agree that as between themselves, the defendant was not to have the rights, or come under the obli- gations of a partner. Judgment reversed, and a new trial is ordered before another referee, costs to abide the event. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment reversed, and new trial ordered before another referee, eoets to abide event MOORE v. McCLURE. 55? FOUKTH DEPARTMENT, OCTOBER TERM, 1876. CHARLES T. MOORE, APPELLANT, v. 0. CERESA MoOLURE, RESPONDENT. Cause of action Complaint when sufficient Promissory note signed "J. 8. McClure, agent" liability of principal upon. The complaint alleged that the defendant, by J. S. McClure, her agent, made and delivered Tier promissory note, in writing, setting forth a copy of the note, signed J. 8. McClure, agent, and alleging that the consideration of the note was goods sold to the defendant. The defendant demurred. The demurrer was sustained at Special Term on the grounds that the note did not refer to the defendant by name, and did not show that McClure had authority to sign as her agent. Held, that the complaint stated facts sufficient to constitute a cause of action. That, under the allegation that the defendant made and delivered her promissory note, it would be competent to show that the person signing the note was duly authorized by her so to do. The fact that the name of the defendant did not appear upon the face of the note, would not prevent the plaintiff from introducing evidence to show that she waa bound thereby. APPEAL from an order made at the Special Term sustaining a iemurrer to the second count of the complaint herein. The count was as follows : "And for a second and further cause of action the plaintiff alleges that on the 7th day of January, 1875, the said defendant, by J. S. McClure, her said agent, made and delivered to this plaintiff her promissory note in writing, of which the following is a copy : CANANDAIGUA, January 1th, 1874:. Twenty days after date I promise to pay to the order of C. T. Moore sixty-one and sixty-two one-hundredths dollars, at Williams & Remington's Bank, value received, with use and exchange ot New York. JOHN S. McCLURE, Agent." That said note was given by said McClure to plaintiff, for and as the agent of said defendant, and that said note was given by said defendant, by her said agent, for and on account of goods, wares and merchandise theretofore sold and delivered by said plaintiff to said defendant. J. K Roe, for the appellant. George F. Jackson, for the respondent. 558 MOORE v. McCLURE. FOURTH DEPARTMENT, OCTOBER TERM, 1876 TALOOTT, J. : This is an appeal from an order made at the Special Term in Monroe connty sustaining a demurrer to the second count of the complaint. The cause of demurrer assigned is, that the count does not state facts sufficient to constitute a cause of action. The count contains, in substance, the following averments : That the defendant, by J. S. McClure, her agent, made and delivered to the plaintiff her promissory note, in writing, of which a copy is set forth, and appears to be a note in the ordinary form, promising to pay to the plaintiff or order sixty-one dollars and sixty-two cents at a bank therein named, for value received, purporting to be signed as follows : John S. McClure, agent. That the note was given by said McClure to the plaintiff for and as the agent of the defendant for goods, wares, and merchandise theretofore sold and delivered by the plaintiff to the defendant. That the defendant, before the commencement of the action, promised and agreed to pay the note ; that no part thereof has been paid, and that there is due and owing from the defendant to the plaintiff sixty-one dollars and sixty-two cents, with interest from January 7, 1875, on the note. The demurrer was sustained on the ground that the note does not refer to the defendant by name, ami the count does not show that J. S. McClure had authority, as the agent of the defendant, to make the note, or that it was made in the business of his agency. We think the count is sufficient. It avers that the defendant, by her agent, in consideration of goods etc., sold and delivered to her, made her note. The statement that it was made by her agent was unnecessary, and is superfluous. The allegation that the defendant made her note, when it appears to have been in fact signed by another party, necessarily includes the allegation that such other party was duly authorized to make the note in behalf of the defendant, and under it proof could have been given, and would be requisite, to establish that it was in fact the note of the defendant, by proving the authority of the agent to make the note in her behalf. It could not be true that she made and delivered her note, unless the agent was duly authorized to make and deliver the note in her behalf. The fact that the name of the principal does not appear on the face of the note is not, under the modern KENT v. REYNOLDS. 559 FOURTH DEPABTMENT, OCTOBEB TEBM, 1876. decisions in this State, at all conclusive. If it was intended to be given in the business of the principal, was in fact so given, and with due authority, it is binding on the principal, and all this is matter of evidence, all covered by the averment that it is the note of the principal. The order sustaining the demurrer is reversed with costs, with leave for the defendant to amend within twenty days, on payment of the costs of the demurrer and appeal. Present MULLIN, P. J., SMITH and TALCOTT, J J. Order sustaining demurrer reversed with costs, with leave to defendant to answer, on payment of costs of demurrer and appeal. JAMES M. KENT, APPELLANT, v. ANDREW C. REYNOLDS, RESPONDENT. Surrender and cancellation of note, not paid in fuU no right of action, exittt thereafter for amount unpaid. "Where a creditor surrenders to bis debtor an obligation for the purpose of can- cellation, and the latter, in pursuance of such agreement, cancels and destroys the same, no action can thereafter be maintained thereon by the creditor, in the absence of any fraud, mistake or illegality in the transaction, even though the amount paid by the debtor was less than the amount due upon the obligation eurrendered. APPEAL from an order of the County Court of Onondaga county granting a new trial. F. M. Evarte, for the appellant W. Scmders, for the respondent. TALOOTT, J. : The assignor of the plaintiff held certain notes against the defend- ant, made in 1868, amounting to $150, without interest, on which 560 KENT v. REYNOLDS. FOURTH DEPARTMENT, OCTOBER TERM, 1878. only five dollars had been paid. The defendant becoming insolv- ent, the holder of the notes agreed to take fifty cents on the dollar for the notes. The defendant procured a relative to advance to take up the notes seventy-five dollars, being at the rate of fifty cents on the dollar for the face of the notes, not including five dollars which had been paid. The assignor of the plaintiff received the seventy- five dollars from the defendant's relative, Turner, and the promise of the defendant to pay the balance to make up the sum of fifty cents on the dollar, as the plaintiff claims. The defendant denies this, and insists that the notes were sold to Turner for the seventy-five dollars paid. At all events, the notes were delivered up by the assignor of the plaintiff to Turner, with the full intention of sur- rendering the same. It is claimed by the plaintiff that the notes were not purchased by Turner, but that the seventy-five dollars was, in fact, a loan from Turner to the defendant, and the payment was, in substance, by the defendant of seventy-five dollars in satis- faction of a larger sum due on the notes. Turner held the notes for two years or thereabouts, when the defendant gave to Turner his note for the seventy-five dollars, and interest, and received his own note for $150, which he destroyed. The plaintiff's assignor, the father of the plaintiff, testifies that he fully agreed to surrender the notes for fifty cents on the dollar, and that he delivered them to Turner with no agreement or expectation that they should be returned to him, and that he relied on the promise of the defendant to pay him the difference between the seventy-five dollars and the amount necessary to make the payment equal fifty per cent of the notes, which he states to be twelve dollars and fifty cents. The action was originally commenced in a Justice's Court, where the plaintiff recovered a judgment for fifteen dollars and ninety- two cents and costs, which was probably the amount with interest remaining unpaid on the compromise. The plaintiff appealed to the County Court for a new trial. The cause was retried in the County Court, where the plaintiff, under the charge of the court to the jury, obtained a verdict for $100. The County Court set the verdict aside, and granted .a new trial on the minutes, and from the order granting a new trial the plaintiff appeals. The new trial was granted in the County Court, on the ground that the charge was erroneous. The county judge had instructed the jury as KENT v. REYNOLDS. 561 FOUBTH DEPARTMENT, OCTOBEK TERM, 1876. follows : " If the agreement between Kent and .Reynolds was that fifty cents on the dollar, amounting to eighty-seven dollars and fifty cents, was to be paid to eifect the compromise, and there was no absolute sale of the notes by Kent to Turner, but Turner a i?anced the seventy-five dollars to Kent, and received the notes from him at the request of Reynolds, acting for him pursuant to to the agreement between Kent and Reynolds, that Reynolds would pay the balance of twelve dollars and fifty cents to make up the compromise money, or fifty cents on the dollar, then the plain- tiff was entitled to recover the full amount of the notes, less the seventy-five dollars paid by Turner." To this part of the charge the defendant excepted, and requested the court to charge " that in any event the plaintiff could only recover the balance of the compromise money, twelve dollars and fifty cents, and the interest thereon," and the court refused so to charge, and the defendant excepted. We think the County Court was correct in ordering a new trial. Conceding that the amount ^aid by Turner was to be consfdered as a loan by him to the defendant, and that Turner acted merely as the agent of the defend- ant in receiving the notes and paying the seventy-five dollars, and that the plaintiff' relied upon the promise of the defendant to pay the twelve dollars and fifty cents to make up the full amount of the compromise, yet the holder of the notes voluntarily surren- dered them for cancellation, without any fraud or mistake, but voluntarily and in pursuance of his own agreement, and for a con- sideration deemed advantageous at the time. When the obligation of a debtor is thus surrendered for cancellation, and in pursuance of such surrender the debtor has, as he was authorized by the agreement to do, cancelled or destroyed the obligation, no action can afterwards be maintained thereon by the creditor, who alleges no fraud, mistake or illegality in the transaction. (Beach v. JShdress, 51 Barb., 5TO.) This is not like the case when a usurious obligation has been taken for a valid debt. In the latter case the contract by which the usurious obligation is substituted is unlaw- ful and declared by the statute to be void, and if the obligor sets up the illegality of the substituted obligation, the original valid debt is revived, and may be recovered. ( Winstead Bank v. Webb, 39 N. Y., 330.) HUN VOL. VIII. 71 562 BROWN v. PEOPLE. FOURTH DEPARTMENT, OCTOBER TERM, 1876. We think the plaintiff's recovery should have been confined a* stated in the defendant's request to charge. The order is affirmed, with costs. Present MULLIN, P. J., SMITH and TALOOTT J J Order affirmed, with costs. HARLEY BROWN, PLAINTIFF IN ERROR, v. THE PEOPLE OF THE STATE OF NEW YORK, DEFENDANTS IN ERROR. fbrged note name of fictitious person evidence of payment of, immaterial Evi- dence of prior arrest of prisoner Objection to question tending to degrade may be taken by counsel when witness is a party. It is not necessary, in order to constitute the crime of forgery, that the name alleged to be forged should be that of any person in existence ; it may be the name of a purely fictitious person. Upon the trial of an indictment for uttering a forged promissory note, evidence tending to show that the note had been paid is immaterial, and is properly excluded. Upon an indictment for forgery the prisoner, on his examination in his own behalf, was asked, with a view of impeaching his character, "How many times have you been arrested? " Held, that the question was improper, as the mere fact of his arrest had no tendency to impeach his character in any particular. Brandon v. The People (42 N. Y., 265) distinguished. Semble, that although the right of a witness to object to answering any question, on the ground that it will tend to disgrace and degrade him, is a personal privilege which must be claimed by the witness, yet that the rule is different in the case of a party examined as a witness, and that in this case the objection may be taken by his counsel, whose duty it is to protect his rights and interpose objec- tions in his interests growing out of any incident in the litigation. WRIT of error to the Court of General Sessions of Ontario oounty, to review the conviction of the plaintiff in error of forgery The indictment upon which the plaintiff in error was convicted contained two counts one for feloniously forging a promissory note, signed by Edwin Brown, Lucretia Brown (father and mother of plaintiff in error), and Albert Bennett ; and the other for utter- ing and publishing the same with intent to defraud one Josepn C. Shelton. BROWN v. PEOPLE. 563 FOURTH DEPARTMENT, OCTOBER TERM, 1876. E. W. Gardner, for the plaintiff in error. frank Rice, district attorney, for the defendants in error. TALCOTT, J. : The writ of error in this case brings up a record of the convic- tion of the plaintiff in error in the General Sessions of Ontario county, with a bill of exceptions attached. The conviction is for feloniously uttering as true a forged promissory note for the pay- ment of money. The bill of exceptions contains numerous exceptions to the rul- ings of the court on the admissibility of evidence, to the charge and refusals to charge. To consider iu detail all these exceptions is impossible, within any ordinary limits ; and since we are of the opinion that the judgment should be reversed and a new trial ordered, we shall only advert to some of the leading questions pre- sented on the trial such as are likely to arise on another trial. The evidence tending to identify Albert L. Bennet as the person designed to be represented by the forged signature, such as the name by which said Bennet was usually known in the community, the place of his residence, in connection with the statement of the defendant, and the fact that no other person by the name of Albert Bennet was known in the county of Ontario, was all admissible on the question as to who was intended to be represented by the forged signature. The omission of the initial of the middle name of the person, whom the evidence showed was intended to be rep- resented by the forged signature, was immaterial. In order to con- stitute forgery it is not necessary that the name alleged to be forged should be that of any person in existence. It may be wholly fictitious ; yet when made or uttered with intent to defraud, snch making or uttering is punishable as a forgery. (1 Colby's Crim. Law, 183.) The evidence offered by the defendant to show that the note had been wholly or partially paid, or had been secured by a chattel mortgage, did not answer the legal inference of the intent to defraud which grew out of the false making, or knowingly passing as genuine, the note in question ; and being immaterial was prop- erly rejected. (1 Colby's Orim. Law, and cases there referred to.) 564 BROWN v. PEOPLE. FOURTH DEPARTMENT, OCTOBER TERM, 1876. Edwin Brown, who, with his wife Lucretia, purported to be signers of the note in question, had testified concerning the signa tures of himself and wife, in a manner tending td show that the Baid Lucretia had personally placed her signature to the note ; and the note being legitimately in evidence before the jury, we see no objection to the course of the public prosecutor in calling attention to the fact claimed by him, that both the signatures of Edwin and Lucretia appeared to have been written by the same hand. This was done to throw some discredit on the testimony of Edwin Brown ; and though of no great importance, we do not think any exception could be taken to the refusal of the court to stop that line of argument. The prisoner having offered himself as a witness in his own behalf, was, on cross-examination, asked by the district attorney, the following question : " How many times have you been arrested ? " This was objected to by the prisoner's counsel as incompetent, irrelevant, tending to degrade the witness, etc. The objection was overruled and the prisoner's counsel excepted. The question was asked with a view of impeaching the character of the prisoner by the answer, and he answered : " Five times, I believe." We do not think this evidence was admissible as an impeachment of the prisoner's character, either generally or for truth and veracity for which purpose only it is claimed to have been offered. (Jackson v. Osborn, 2 Wend., 555 ; People v. Gay, 7 N. Y., 378 ; Lipe v. Eisenlerd, 32 id., 229. op. p. 238.) In the case of Jackson v. Osborn, referred to, it was held, that even evidence of indictments found against the witness for forgery and perjury were inadmissible, without proof of conviction. How, then, can evidence of a mere arrest, with- out even specifying that the arrest was upon the charge of crime, be admitted as an impeachment of the character of the party arrested, in any particular. The evidence was calculated to prejudice the prisoner in the minds of the jury, for which purpose it was offered ; and having been admitted against his objection, we cannot say that it did not produce some effect, however much the other evidence in the case might be supposed to have warranted the conviction. In the case of Brandon v. The People (42 N. Y., 265), the BROWN v. PEOPLE. 565 FOURTH DEPARTMENT, OCTOBER TERM, 1876. admission of a similar question was sustained ; but as we under stand that case, wholly upon the ground that the only objection made to it was that the prisoner had not put her character in issue, wholly ignoring the rule that the prisoner, having made her- self a witness, was subject to the same liability to have her charac- ter attacked by proof of facts having a tendency to degrade her in the estimation of the jury that any ordinary witness was liable to ; and we understand the case to, impliedly at least, concede, that had the proper objection been stated the question should have been excluded. There is, in reference to the testimony thus objected to, another question which gives rise to grave doubts. The counsel for the prisoner then on the witness stand, interposed the objection that the prisoner (and witness) was privileged from answering the same, on the ground that the answer must tend to disgrace and degrade him, and was wholly immaterial to any issue in the case. This is answered by saying that the privilege is personal to the witness, and the objection must be taken by him. True, this is the rule where the person under examination is a mere witness ; arid it is held that, in such a case, the objection of the party is unavailing. But under the present state of the law where the parties are also witnesses, it would seem that a different rule should prevail, and that a party to the suit being under examination as a witness, the objection may properly be stated by his counsel, and that it should be held that the witness and party must be assumed to speak through the mouth of his counsel, who is presumed to be authorized and required to protect his rights, and interpose objections in his interest growing out of any incident in the litigation. How this may be it is not necessary to decide at this time, inas- much as we think the question was inadmissible upon the general objection that the answer could have no legitimate tendency to impeach the character of the prisoner, and was therefore irrelevant and calculated to prejudice him. For this reason, and without more particularly discussing the numerous other exceptions taken in behalf of the prisoner, we think the conviction should be reversed and a new trial ordered. 56() PEOPLE KX UKI.. SHAW u. SCOTT FOURTH DEPARTMENT, OCTOBER TERM, 1876. Judgmeiit reversed and proceedings remitted to the General Ses- sions of Ontario county, with directions for a new trial. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment reversed and proceedings remitted to the General Sessions of Ontario county, with directions for a new trial. THE PEOPLE OF THE STATE OF NEW YORK EX REL. LYMAN SHAW, RESPONDENT, v. WARREN SCOTT, COMMISSIONER OF HIGHWAYS OF THE TOWN OF ARKWRIGHT, APPELLANT. Freeholder Titie to real estate Inheritance subject to power of tale. One who has a title to real estate is a freeholder, irrespective of the amount or value of his interest therein. A testator, by his will, directed the sale of certain real estate, and the distribution of the proceeds among the children of his present wife, the will naming no executor and containing no power of sale. Held, that the title to the real estate vested, upon his death, in his heirs at law, and that a child by a former wife was, until a sale should be made in pursuance of the will, a freeholder, and, as such, authorized to sign a certificate as to the necessity and propriety of opening a highway. APPEAL from a judgment entered upon the report of a referee awarding a peremptory mandamus. Morris <& Russell, for the appellant. Julius A. Parsons, for the respondent. TALCOTT, J. : This is an appeal from a judgment awarding a peremptory man- damus, requiring the defendant, sole commissioner of highways of the town of Arkwright in Chautauqua county, to open and work a certain proposed highway. The proposed highway passes through improved and cultivated lands, whereby, in order to authorize the opening of the same PEOPLE EX KEL. SHAW v. SCOTT. 567 FOURTH DEPARTMENT, OCTOBEB TERM, 1876. against the owners' consent, a certificate of twelve reputable free- holders of the town that the highway is necessary and proper,, became requisite. Such a certificate the relator claims was made. The commissioner, however, refused to open said highway upon the ground that Ransler Luce, one of the twelve who had signed the certificate, was not a freeholder of the town. The lelator appealed from the refusal of the commissioner to the county judge, who, pursuant to the statute, appointed three referees, who reversed the decision of the commissioner and ordered the road to be laid out. The commissioner still refusing, the relator obtained an alter- native mandamus. To this the commissioner appeared and answered, and issue was joined between the parties upon the question, whether said Ransler Luce was a freeholder or not. The issue came on to be tried at the Chautauqua Circuit, when it was referred by consent of both parties to a counselor of this court. The matter was tried before the referee, who reported in favor of the relator. The report was confirmed, and judgment that a per- emptory mandamus issue was ordered. From that judgment the appeal was taken. The only point decided by the referee was, that Ransler Luce was a freeholder, and that he was the owner of a distributive portion of forty acres of laud in said town, title to which was acquired by said Ransier Luce by inheritance, as one of the heirs at law of Moses Luce, deceased. By the term "freeholder" is meant such as have title to real estate. (People v. Hynds, 30 N. Y., 472.) The amount or value of such freehold interest is not prescribed. The said Ransler Luce was one of the heirs at law of Moses Luce, deceased, and the question, whether he took title to any part of the forty acres, depends upon the construction of a clause in the will of Moses Luce, which is in the following words, viz : " I direct that my forty-acre lot, being the east, middle part of lot twenty- six, be sold, and the proceeds be divided between the children of my present wife, equally, except my son John Luce is to have $100 less than an equal share, and my son William B. Luce is to have fifty dollars less, and my son Curtis Luce, is to have fifty dollars less than an equal share." The will named no executor, and no power of sale was contained 568 PEOPLE KX REL. SHAW v. SCOTT. FOURTH DEPARTMENT, OCTOBER TERM, 1876. in it, except as aforesaid. Ransler Luce was a son by a former wife. By the common law the land descends to the heir, unless devised to somebody else (4 Kent, 375) ; and the heir is not to be deprived of the inheritance, except by express words or necessary implication. To take away the right of the heir the utmost certainty of the tes- tator's intention is required. (1 Black. Com., 450.) The clause in question directs a sale of the forty-acre lot, and a division of the proceeds. A power in trust to sell and divide is thereby implied, and if an executor had been named, probably the power in trust would have devolved on him ; but in the absence of such appointment, the court will appoint a trustee ; such trustee of the power will not take the title to the land, but a naked power. Where, in the mean time, does the title vest ? It can only vest in the heirs at law, subject to the execution of the power of sale. Such a provision in a will is not a devise of the land to the dis- tributees. " They took the price of the land, not the land itself." (MeaJcings v. Cromwell, 1 Seld., 136.) The gift was of money, not of land. Conceding that, for equitable purposes, the land is to be deemed as converted into money ; yet it is not so converted, and in the mean time the legal title must vest in somebody ; unless devised to "somebody else, it descends to the heirs at law, and the mere legal title is the subject of inquiry. If the power had been by the will devolved upon executors or other trustees, then, as they were not empowered to receive the rents and profits, the statute declares that no estate shall vest in the trustees, but the land descends to the heirs, subject to the execution of the power. (1 R. S., 729, 56 ; Germond v. Jones, 2 Hill, 569 ; Reed v. Underbill, 12 Barb., 113.) The referee, therefore, was correct in deciding that the said Ransler Luce was a freeholder within the meaning of the highway statutes. The judgment is affirmed. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment affirmed. HALEY v. WHEELER. 569 FOURTH DEPARTMENT, OCTOBER TERM, 1876. DAVID HALEY, RESPONDENT, v. WILLIAM H. WHEELER APPELLANT. Trespass possession Justice's Court title to land when not in question effect of judgment in ejectment. Although, as a general rule, trespass qua/re dausum fregtt can only be maintained by one in actual possession of the premises when the injury is committed, yet in the case of a disseisin the disseisee, after he has regained possession, may maintain the action against the disseisor for acts intermediate the disseisin and re-entry. Wheeler brought an action of ejectment against Haley, and, having recovered judgment therein, entered into possession of the premises ; subsequently this judgment was set aside, and upon the new trial Haley recovered a judgment, wliereupon possession of the premises was surrendered to him by Wheeler In an action of trespass quare dausum fregit by Haley to recover for acts com mitted by Wheeler while in possession under the tirst judgment, held, that he was entitled to recover. Held, further, that in such action the title to land did not come in question so as to deprive a justice of the peace of jurisdiction thereof, as the final judgment in the ejectment suit conclusively established that the title was in Haley as against Wheeler. APPEAL from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, entered upon the verdict of a jury. Ansley & Vreeland, for the appellant. A. Starrs, for the respondent. TALOOTT, J. : This is an action of trespass. The complaint is in form for a trespass vi et armis quare dausum fregit. The suit was originally commenced before a justice of the peace. Before the justice a judgment was rendered for the defendant, on a verdict of no cause of action. The plaintiff appealed to the County Court of Cattarau- gus, where the jury rendered a verdict in his favor for fifty-three dollars, and judgment was entered for that sum. A motion was made in the County Court for ;i new irial, which was denied, and thereupon the defendant brought this appeal. The answer of the defendant was, that he went into possession of the land in the com- HUN VOL. VIII. 72 570 HALEY v. WHEELER. FOURTH DEPARTMENT, OCTOBER TERM, 1876. plaint described, under and by virtue of a judgment in the defend ant's favor and nguinst tiie plaintiff, awarding the possession of the premises to the defendant. On the trial a record of judgment in an action of ejectment was introduced, commenced by Wheeler the now defendant, against Haley the present plaintiff, from which it appeared that Wheeler first obtained judgment in the action of ejectment. On this judg- ment Wheeler was put into possession of the premises on which the alleged trespass was committed. This judgment was after- ward vacated and set aside, and after various proceedings in the action a new trial was had, and Haley finally recovered judgment on the merits for a restoration of the premises, and dismissing the complaint in the action of ejectment, whereupon Wheeler gave up the possession to Haley. This judgment \vas afterward set aside and a new trial granted, whereupon Haley again recovered judg- ment, dismissing the complaint and for a restoration of the prem- ises, and a writ of possession was issued on this last judgment, whereupon Haley, then being in the actual possession by the vol- untary surrender of Wheeler, was put into formal possession by the sheriff under the writ of possession. The trespasses complained of were for mowing and cutting the grass, rye and corn of the plain- tiff and gathering the fruit, during the time that Wheeler was in possession of the premises under the first recovery. The defendant moved for a nonsuit, on the ground that no cause of action was shown by the plaintiff, and on the ground that title to land came in question. The cause of action was sufficiently made out. The first recovery in ejectment, being set aside and vacated, became of no force and effect from the beginning. The general proposition that an action of trespass quare clausum freyit can be sustained only by the person who has the actual possession when the injury was committed is doubtless correct. But in the case of a disseisin the disseisee, after he has regained possession by re-entry, may maintain trespass against the disseisor for acts intermediate the disseisin and re-entry. For this doctrine the case of Dewey v. Osborn (4 Cow., 329) is a very distinct authority. The title did not come in question so as to oust the justice of jurisdiction. The recovery of the final judgment in favor of Haley against Wheeler was conclusive of the title between these parties, and, as between VILLAGE OF SENECA FALLS v. ZALINSKI. 571 FOURTH DEPARTMENT, OCTOBER TERM, 1876. them, the defendant could not question the title. (Iceland v, Tousey, 6 Hill, 328; Van Ahtine v. McCarty, 51 Barb., 326.) The judgment of the County Court and the order denying a new trial are affirmed. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment of County Court and order denying a new trial affirmed. THE VILLAGE OF SENECA FALLS, PLAINTIFF, v. MICHAEL I. G. ZALINSKI, DEFENDANT. Obstruction of streets License from corpora (on, when presumed Injury to trav- eler liability of party causing bound by judgment against corporation. The fact that a party constructing a building deposits materials therefor in the street and keeps them there during the erection of the building, with the full knowledge of the trustees and superintendent of the village, is sufficient to imply a consent on the part of the village authority to such use of the street. It does not create a nuisance to deposit such materials in the street, if they are properly guarded. Where a party is authorized by the corporate authority to deposit building mate- rials in a public street, it is his duty to see that proper guards or lights are erected and maintained during the night so that travelers may not be exposed to injury thereby. The corporation may maintain an action against such person, to recover the amount of a judgment which it has been compelled to pay, to one who waa injured in consequence of his failure to erect and maintain proper guards or lights by such obstructions. Where he has been notified of the pend.'i cy of an action against the corporation, the judgment recovered thereon is conclusive against him so far as relates to the cause of action, the amount of damages, and the other matters necessarily involved therein. MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Term, after an order nonsuiting the plaintiff. The action was brought to recover the amount of a judgment which the plaintiff had been compelled to pay to one Benrath, for injuries sustained by him on account of obstructions placed by the 572 VILLAGE OF SENECA FALLS v. ZALINSKI. FOUBTH DEPARTMENT, OCTOBER TERM, 1876. defendant in Fall street, in the village of Seneca Falls. The obstructions consisted of building materials, deposited in the street by the defendant, while engaged in erecting buildings upon the adjoining lots, which were owned by him. Benrath was injured by running against the same on a dark night, there being at the time no light or guard in the neighborhood of the materials. Notice was given to the defendant in this action of the suit commenced against the village by Benrath, in which the judgment was recovered. P. H. Van Auken, for the plaintiff. The rule is well settled, that where a party is injured by reason of any obstructions or defects in a public street, placed, made or continued by any person, and the municipal corporation is compelled to pay the damage sus- tained by the party injured, the corporation has a remedy over against the person so making or continuing such obstructions or defects for the amount so paid. ( Wilson v. City of Watertown, 3 Hun, 514 ; City of Chicago v. Robbins, 2 Black., 418 ; Inhabitants of Woburn v. Henshaw, 101 Mass., 193 ; Inhabitants of Stoughton v. Porter, 13 Allen, 191 ; Inhabitants of Milford v. Rolbrook, 9 id., 18 ; City of Lowell v. B. and L. R. R. Corp., 23 Pick., 24; City of Lowell v. Spaulding, 4 Cush., 277.) The record of the judgment in the action of Benrath against the village was compe- tent evidence against the defendant, and conclusively showed that the obstructions placed or continued in the street by the defendant rendered the street unsafe and dangerous for the use of the public ; that the plaintiff in that action was not chargeable with any con- tributory negligence precluding his right of recovery, and of the amount that the plaintiff was entitled to recover of the defendant. (Mayor, etc., of Troy v. The Troy and Lansingburgh R. R. Co., 49 K Y., 657 ; City of Boston v. Worthington, 10 Gray, 496.) Miller & Hardley, for the defendant. If the village licensed the defendant to place the obstruction in the street, it cannot recover. A license is a perfect defense. ( Walter v. Post, 6 Dner, 363; MilZer v. A. and S. R. R. Co., 6 Hill, 61.) Having given the license, the village is in pari delicto with the defendant, and for that reason cannot recover. It can have neither indemnity nor contribution. (City of Brooklyn r VILLAGE OF SENECA FALLS o. ZALINSKI. 573 FOURTH DEPARTMENT, OCTOBER TERM, 1876. Brooklyn City R. R., 47 K Y., 486, 487 ; Shearman & Kedfield on Neg., 419, p. 476, and cases cited ; Boston v. Worthington l 10 Gray, 496 ; Wendell v. Troy, 39 Barb., 329.) Having given license, the village must protect itself by a contract. (City of Brooklyn v. Brooklyn City It. R., 47 N. Y., 475 ; Troy v. Troy and L. R. R. Co., 49 id., 657; 2 Dillon on Munic. Corp., 582.) If the village did not license the defendant it could not recover, because it was the duty of the village authorities them- selves to remove the obstructions and abate the nuisance. (Charter of Seneca Falls, Laws of 1865, chap. 543, 18, 19 ; Thompson on Highways, 76 ; Wendell v. Troy, 39 Barb., 329.) As a corpora- tion may be compelled to pay damages caused by the negligent manner in which persons occupy or use streets with building mate- rial, it may impose reasonable conditions on those who wish thus to occupy the streets; for example, require them by ordinance to give bonds of indemnity. It would seem it must protect itself thus. And the village has power to pass an ordinance regulating these matters. (2 Dillon on Munic. Corp., 582, 583, 584.) Having done that, it can only enforce the ordinance. (Flynn v. Canton Co., 40 Md., 312; Kirly v. Boylston Market Ass., 14 Gray, 249; Vandyke v. Cincinnati and Harberon, 1 Disney, 532 ; Admr. of Chambers v. Ohio Life and Trust Co., id., 327; 13 Alb. Law Jour., 321.) . DARWIN SMITH, J. : Under the evidence given at the trial the jury would have been warranted in finding, and I think bound to find, that the obstruc- tions placed in the street by the defendant were by or under a license from the authorities of the village. The defendant testified that he and a Mr. Disky, who was build- ing adjacent to him, went together to the office of the president of the village and asked for the privilege to unload the materials in the street for the buildings they proposed to erect, and he said "yes; it is all right; you can do so." Mr. Disky testified to the game interview and conversation. But aside from this evidence, the fact that the defendant and said Disky did in fact deposit the materials used in erecting their said buildings in the street, and kept them there more or less through the whole summer of 1872 574 VILLAGE OP SENECA FALLS v. ZALINSKL FOUKTH DEPARTMENT, OCTOBER TERM, 1876. while engaged in erecting said buildings, with the full knowledge of the trustees and superintendent of said village, was sufficient evi- dence upon which to imply a consent on the part of the village authorities to such use of the street. Such license relieved the defendant from a liability to indictment or other prosecution for obstructing said street, but could not be considered as authorizing him to erect and maintain a nuisance therein. It was not a nuisance to deposit such materials in the street, pro- vided they were properly guarded, so that persons traveling said street were exposed to no unnecessary obstacles to the free passage .thereof, or to any unreasonable peril. Municipal corporations are bound to keep their streets in a safe condition for travel, and are liable to respond in damages to any person receiving a special injury from their neglect of this duty. Where streets in a city or village are used, as in this case, for the deposit of materials by the adjoining proprietor for building pur- poses, or dug up for the construction of sewers, the laying of water or gas pipes, or for other improvements by the corporation or by the adjoining owner, the corporation is bound to see to it that proper guards, or lights by night, be erected and maintained around such excavations or obstructions, so that travelers be not exposed to injury. (Storrs v. The City of Utica, 17 N". Y., 104.) The obstructions in this case, put in the street by the defendant, were not thus guarded in the night, when Benrath received the injury for which he recovered in an action against the plaintiff. That recovery was therefore apparently proper. The license which the defendant received from the plaintiff to place such obstruction in the street, did not, as above stated, entitle him to create a nui- sance in such street. The nuisance which gave a ground of action was the omission to place and maintain guards, or lights, around such deposits by night. It was the duty, I think, of the defend- ant to place such guards, or lights, around the obstructions by him placed in said street. He took the leave or license from the plain- tiff to use the street for his private benefit, upon the implied agree- ment on his part that the city should be protected by him against loss or damages by reason of the obstructions to be by him to placed in said street. VILLAGE OF SENECA FALLS v. ZALINSKL 575 FOURTH DEPARTMENT, OCTOBER TERM, 1876. He impliedly undertook that he would erect no nuisance in the street ; that he would so guard the obstructions to be placed by him thereon that no injury should ensue to or be suffered by any one traveling such street. This doctrine is asserted in the case of The City of Chicago v. Rollins (2 Black [U. S.], 418), which case is quite parallel with this. In that case .Bobbins was the owner of a lot on one of the pub lie streets of the city, and excavated in the sidewalk, next to and adjoining his lot, an area of considerable length and breadth, and suffered the same to remain uncovered and unguarded so that, in the night, a person passing along said street, ft 1 ! into it and was injured ; for which injury he sued the city, and recovered a judg- ment for $15,000 and costs, which was paid by the city ; and the city then sued Robbing to recover the amount thus paid. On the trial, evidence was given to show th^t the city authori- ties knew of the excavation of the area, and others similar, and interposed no objection to the same, though no express permission to make this one was given. It was held, that though the city was liable to the party injured for the damages sustained by him, the corporation had a remedy over against the party that was in fault and had so used the street as to produce the injury, and that the defendant Robbing having had notice of the pendency of the suit, was concluded by the judgment. In the opinion of Justice DAVIS, who gave the opinion of the court, he said : " Without M:I expross ;> rmission from the city, but under an implied license, he (the defendant) makes the area ; no license can be presumed from the city to leave the area open even for a single night. The privilege extended to Bobbins was for his benefit alone, and the city derived no advantage from it except incidentally. Robbing impliedly agreed with the city that if he was permitted to dig the area for his own benefit, he would do it in such a manner as to save the public from danger and the city from harm." This case was retried and came back for review to the Supreme Court, where it is again considered and reported with the title reversed Bobbins v. The City of Chicago in 4 Wallace, fi57 where the same doctrine is reasserted. 57G VILLAGE OF SENECA FALLS v. ZALINSKL FOURTH DEPARTMENT, OCTOBER TERM. 1876. This same doctrine is also asserted in Stoughton v. Porter (13 Allen, 191); Boston v. Worthington (10 Gray, 496); Lowell v. B. and L. R. R. Co. (23 Pick., 24), and Woburn v. Henshaw (101 Mass., 193), which cases, as well as the above case of Robbint \. City of Chicago, as Judge FOLGEB stated in The City of Brook- lyn v. Brooklyn City R. R. Co. (47 N. Y., 481), were recognized and approved in The Mayor, etc., of Troy v. The Troy and C. R. R. Co., decided in April, 1872 (Ct. of Appeals). The case referred to by Judge FOLGEB is reported in the memo- randa at the end of volume 49 New York, 657. In the case of The City of Brooklyn v. The Brooklyn R. R. Co. the case was put upon the ground of an express contract which existed in the case ; and in the case of The Mayor of Troy v. Troy and C. R. R. Co. the brief report of the case states that the rail- road company accepted a license to lay its track upon and through certain streets, upon condition that it should keep the same in repair. The question whether a contract, not to commit any nuisance to the injury of the public or the municipal corporation, will be implied from the acceptance of a license to use a street for the pri- vate benefit of the part} 7 asking for and receiving such license was not distinctly decided, but I cannot see how the court could have recognized and approved the principles asserted in the case of the City of Chicago v. Robbins, and the other cases above mentioned, upon any other ground. The notice to the defendant of the com- mencement of the suit against the plaintiff by Bennett, was clearly sufficient to charge the defendant in this action with the duty to defend said action, and to make the judgment conclusive against him within the same cases, so far as relates to the cause of action and the amount of damages and the matters necessarily included in the adjudication. The question whether the plaintiff in that action was injured by obstructions put in the street by the defendant or some other party, was a question for the jury. The nonsuit, we think, was erroneously granted, and the motion for a new trial should be granted, with costs to abide the event. Present MULLIN, P. J., SMITH and TALCOTT, J J. New trial granted, with costs to abide event. PEOPLE EX BEL. BABCOCK v. MURRAY. 577 FOURTH DEPARTMENT, OCTOBER TERM, 1876. THE PEOPLE OF THE STATE OF NEW YORK EX RBL. JEPTHA W. BABCOCK AND OTHERS, RESPONDENTS, v. JOHN" T. MURRAY, THOMAS CLEMENT AND OLIVER 0. WRIGHT, APPELLANTS. Quo warranio Commissioners of excise Several persons, claiming to constitute A board, united as relators. In an action by the people on the relation of three persons, claiming to constitute a board of excise, against three others whom they allege have usurped the said office, it is not necessary to allege or prove that any one of the relators is enti- tled to the office occupied or claimed by any one of the defendants; the object of such action is to determine which set of persons lawfully compose or is entitled to compose the board of excise. APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. This is an action of quo warranto, the relators alleging that they had been duly appointed commissioners of excise of the city of Lockport, and that the defendants have unlawfully usurped the same. The action has already been before the General Term, the decision being reported in 12 S. C. N. Y. (5 Hun), at page 42. Geo. G. Greene, for the appellants. Holmes, Fitts <& Chi/pmariy for the respondent. E. DABWIN SMITH, J. : W hen this case was before us on a former occasion, we held that the relators were legally appointed commissioners of excise, etc., and see no reason for reconsidering that question. The decision then made appears to have been properly followed at the circuit on the retrial of the cause, and we must affirm the judgment there rendered unless there are some new questions not previously con- sidered, which require us to come to another conclusion. ( Vid S. C., 12 S. C. N. Y. [5 Hun], 42.) At the close of the plaintiffs' case, it appears that a motion for a nonsuit was made, among others, upon the ground that it is not alleged or proved that either plaintiff is entitled to the office occu- HUN VOL VIII. 73 578 PEOPLE EX BEL. BABCOCK v. MURRAY. FOUBTH DEPARTMENT, OCTOBER TERM, 1876. pied or claimed by any one of the defendants. That no one of the relators claims, specifically, the office of either defendant. That several claimants of several and distinct offices cannot unite in, and maintain an action as plaintiffs against several other claim- ants of such several distinct offices. The motion for a nonsuit was denied, and the point thus presented for the first time in th progress of the cause, that several causes of action had beeu improperly united, was overruled, upon the ground that the question not having been raised by demurrer or answer was therefore waived under sections 144, 147 and 148 of the Code. If the nonsuit were not properly denied so Var as relates to thie point, upon the ground stated by the Circuit judge, I think it was not a valid objection, upon the merits, to the proceeding in the action, upon the other ground that the action was in behalf of the people to try the title of the three relators to the office claimed and occupied by the defendants, each set composing or claiming the legal right to compose a board of excise for said ci'-y of Lock- port. The argument of the defendants' counsel, that neither of the relators was appointed in the place of any one of the defendants, shows that the judgment asked by the relators was a proper judg- ment in their favor, against all three of the defendants together, as usurping the said office as members of such board of excise. The relators were all appointed in the same manner to compose a board of excise. Neither of them was appointed in the place of either of the defendants, and there could not for that reason have been a separate judgment for either relator, as against either of the defendants. The action was therefore properly brought in the name of the people, in behalf of the three relators, against the three defendants, to determine which set of these persons claiming title to the said office lawfully composed, or were entitled to com- pose a board of excise for said city. The statute (chap. 175, Sess. Laws, 1870) directs the appointment of three persons at the same time, as a board of commissioners of excise, for each of the cities and villages of the State, to hold for three years. The term begins and ends at the same time, except in the case of a vacancy, and the officer in such case would hold till the end of the term only. BORDEAUX v. ERIE RAILWAY CO. 579 FOURTH DEPARTMENT, OCTOBER TERM, 1876. The principle asserted in the case of The People v. Jones (17 Wend., 81), and reaffirmed in the Matter of the Union Insurance Co. (22 id., 600), sustains the view that the office of the defendants all expired together, and that neither of them had ay right to act as commissioner of excise after the appointment of the relators. We think the proper judgment was rendered at the Circuit, and that the same should be affirmed. Present MULLIN, P. J. SMITH and TALOOTT, JJ. Judgment affirmed with costs. JOHN BORDEAUX, RESPONDENT, v. THE ERIE RAILWAY COMPANY, APPELLANT. The Erie Railway Company no obligation to keep open its ticket offices Fare payment of, at office or to conductor different rates. Under section 14 of chapter 224 of 1832, authorizing the Erie Railway Company "to fix, regulate and receive the tolls and charges by them to be received for the transportation of property or persons," it may establish two rates of fare, discriminating between the cases where the ticket is purchased of a conductor upon a train, and where it is purchased at a ticket office. The company is not bound to keep its ticket offices open at or for any particular time, and the fact that a passenger is unable to procure a ticket in consequence of the office being shut, will not entitle him to be carried to his place of desti- nation upon payment of the amount for which he could have procured a ticket at the office had it been open. APPEAL from a judgment of the County Court of Cattaraugua county in favor of the plaintiff. The action was brought to recover damages occasioned by the ejection of the plaintiff from the defendant's cars, upon his refusal to pay the fare demanded of him by the conductor. The plaintiff, on the 5th day of July, 1874, was in Olean wishing to go to Salamanca. The defendant's road connects these places, and the defendant has a depot and ticket office at Olean. The train was due at the depot in Olean about half-past nine P. M. The plaintiff got to the depot from ten to fifteen minutes before the train started. The ticket office was then closed, but the sitting room was open. Plaintiff went on the train for a few moments, 580 BORDEAUX v. ERIE RAILWAY CO. FOURTH DEPARTMENT, OCTOBER TERM, 1876. then went back to the ticket office; there was no one there, and he could not get a ticket. He then went on the platform, heard the conductor say all aboard, and got aboard. The conductor wanted his ticket. He told him he had none ; that he had gone to the office three times and could not get a ticket. The plaintiff offered him sixty cents, which he would not accept, and asked plaintiff to pay him eighty cents, and told him if he did not pay eighty cents he would put him off the train. The distance is about twenty miles. The conductor informed the plaintiff that his ordeis were to take eighty cents, and that unless that amount was paid he should put the plaintiff off ; and he did accordingly remove him from the train. E. C. Sprague, for the appellant. Ansley <& Vreeland, for the respondent. E. DABWE* SMITH, J. : The defendant acquired its corporate rights under special acts of the legislature. ( Vide Session Laws of 1832, chap. 224, p. 402, and id., 1860, chap. 160, p. 255.) Under section 14 of the act of 1832 the defendants were authorized " to fix, regulate and receive the tolls and charges by them to be received for the transportation of property or persons" on their railroad. The defendants, accord- ingly, had fixed two rates of fare on their said railroad, between the villages of Olean and Salamanca ; one rate of eighty cents, with a rebate of fifteen cents at the end of the route when the fare was paid to the conductor on the train ; and another rate of sixty cents when the fare was paid in the purchase of a ticket at any of their offices for the sale of tickets. The defendants had a clear right to fix two rates of fare, dis- criminating between the case where the fare was paid to their con- ductors on their trains, and where it was paid at a collection office for the sale of tickets. (1 Redfield on Railways, 112, 26, 28 ; ffilliard v. Goold, 34 N. Hamp., 230 ; State v. Goold, 53 Maine, 279 ; Stephen v. Smith, 29 Vermont, 160.) In some of the cases where the question of this discrimination between fares paid in the purchase of tickets and fares paid to the conductors of trains has been considered, its lawfulness was held BORDEAUX v. ERIE RAILWAY CO. 581 FOTTRTH DEPARTMENT, OCTOBER TERM, 1876. to depend upon the question whether the passenger who was required to pay the higher fare to the conductor, had been unable to procure a ticket at a ticket office, without fault or neglect on his part. The rule is asserted in this way in the case of Jeffersonville R. R. v. Rogers (38 Indiana, 116 ; 10 Am. Rep., 103). In that case the plaintiff applied at the proper office to purchase a ticket from Indianapolis to Columbus, and was informed by the ticket agent that he had no ticket to Columbus. The court held that the plaintiff was entitled to r/de upon the ticket fare, upon the payment or tender of that sum to the conductor. The same rule was asserted in The Chicago, Burlington and Quincy Railroad v. Park (18 Illinois, 460), and perhaps in some other cases in that State. In these cases the question is not discussed upon principle ; and I can hardly conceive upon crhat principle they rest. The decisions may be correct under particular statutes in those States, or under the particular mode or ;? rms in which the fares may have been fixed or established The rule asserted in fchese cases is, in substance, that applied in this State, under express legislation, in respect to the Xew York Central Railroad Coirpany, as asserted in Sorter v. said company (34 Barb., 353) ; fltttis v. Same (30 N. Y., 505) ; Chase v. Same (26 id., 523). Tbeee cases were all actions for a penalty given by statute for taking rllegal fares. The legal fare tixed by the statute for said railroad rompany is two cents a mile. A special statute allowed said corrpany to require the payment of five cents in addi- tion to such fo'e, of any passenger who entered the cars without first having purchased a ticket for that purpose, at any station wheie a ticVet office is established and open; and said statute required the said company should keep the said office open at least one hour pHor to the departure of each passenger train from such station. ( Vide Laws of 1857, chap. 228, p. 488.) But there is no such statute relating to the Erie Railway ; and the charge of five cents, rr/quired where the fare is paid to the conductor, is not an enhancement of the legal fare, but is within the limit of such fare. On the contrary, the price of tickets sold at the office, is an abate- *, of the legal fare as fixed where the payment is made on the 582 BORDEAUX v. ERIE RAILWAF CO. FOURTH DEPARTMENT, OCTOBER TERM, 1876. cars. It is rather a privilege of the passenger, and an inducement to him to purchase his ticket at some office of the company before taking his seat in the cars, instead of paying his fare to the con ductor on the train. (State v. Goold, 53 Maine, 282.) The plaintiff in this action went to the defendant's depot on Sun- day night about nine o'clock, to take the train to Salamanca, and found the ticket office closed, as he testified. He failed, for that reason, to get a ticket, and got on to the train, and when asked for his fare refused to pay the fare fixed for passengers paying the con- ductor on the train, and claimed to pay the ticket price of sixty cents. Upon what principle could he claim to fix the price he should pay for his passage? The conductor's duty was to charge him the price fixed, eighty cents, with the rebate of fifteen. He had no ticket. The conductor was bound to exact the fare fixed for such cases; he could not take less than sixty-five cents without disobedience of his instructions and without a relinquishment of part of the legal fare. How can the plaintiff base a claim to dictate the fare he should pay, upon his failure to find the ticket office of the defendants open when he wished to purchase a ticket ? The defendant was under no legal duty to have their office open at that time, or any other particular time ; they had made no contract with the plaintiff to do so. They had offered to carry him, in legal effect, from Olean to Salamanca for sixty-five cents, paid to their con- ductor, with the privilege to him to purchase a ticket at any of the offices, when open, for sixty cents, for such transportation. They open their offices at their own discretion and for their own convenience and interest, and cannot be compelled to open them or keep them open otherwise, except by act of the legislature. The courts cannot say when, or for how long a time they shall open such offices each day or otherwise. If the plaintiff failed for any cause to procure a ticket, he had no right to get into the defendant's cars, except upon the implied engagement on his part to pay the fare fixed for, and required of passengers without tickets. The case is within the rule and principles asserted in the able opinion of the court, in the case of Crocker v. The New Londo* f the whole liability, it is a good accord and satisfaction. In Boyd < Suydam v. Hitchcock (20 Johns., 76), three promis- sory notes were given by a debtor for part of his debt, with an indorsee, which were accepted in satisfaction of the debt. The court neld that here was a beneficial interest acquired, and a valu- able consideration received by the plaintiff, and that it was a valid discharge on the ground of accord and satisfaction. To the same effect are the cases of Kellogg v. Richards (14 Wend., 116) ; Fris- bie v. Lained (21 id., 450) ; Howard v. Norton (65 Barb., 167). The receipt, we think, was a perfect accord and satisfaction of plaintiff's claims, and was so intended, and a complete defense to the action BASTABLE v. CITY OF SYRACUSE. 587 FOURTH DEPARTMENT, OCTOBER TERM, 1876. The order denying a new trial should be reversed and a new trial granted, with costs to abide the event. Present MTJLLIN, P. J., SMITH and TALCOTT, JJ. Order reversed and new trial granted, with costs to abide event. STEPHEN BASTABLE, KESPONDENT, v. CITY OF SYKA- CUSE, APPELLANT. City construction of streets surface water collection of into one stream. Although no action can be maintained for the diversion from its ordinary course of the surface water arising from rains and melting snow, yet if such water be collected into a single channel and cast in a large volume upon the land of an adjacent owner, he may maintain an action to recover the damages sus- tained thereby. In pursuance of an ordinance by the common council of the defendant, a street was constructed in the city of Syracuse, whereby the surface water from a large area, which had formerly flowed through no well defined channels over the adjoining low lands, was collected into a single stream and thrown upon the land of the plaintiff. Held, that he was entitled to maintain an action to recover the damages sustained thereby. APPEAL from a judgment in favor of the plaintiff, entered 'upon the trial of this action by the court without a jury. This action was brought to recover damages sustained by the plaintiff, by reason of the wrongful diversion of surface water by the defendant in grading certain streets and making other improve- ments in the city of Syracuse, whereby such water was conducted to and turned upon certain premises of the plaintiff. Hiscock, Oifford & Doheny, for the appellants. Liability for damages cannot result from the exercise of judicial functions, and especially this judicial authority in the case of street commissioners and city authorities has been ruled upon, and so thoroughly fixed in the law of England and of the United States that it would seem there ought to be no question in the present case. ( Wilson v. Mayw, etc., 1 Den., 595 ; Mills v. City of Brooklyn, 32 N. Y., 489 ; 588 BASTABLE v. CITY OF SYRACUSE. FOURTH DEPARTMENT, OCTOBER TERM, 1876. Raddijfs Escrs. v. Mayor, 4 id., 195 ; 1 6 Miss., 255 ; Kavanaugh v. City of Brooklyn, 38 Barb., 235 ; Clark v. City of Wilmington, 5 Har., 243 ; White v. Ta&oo, 27 Miss., 357 ; King v. Comr. of Sewers, 8 Barn. & Cress., 355 ; Parks v. City of Newburyport, 10 Gray [Mass.], 28 ; Smith v. City of Washington, 20 How. [U. S.], 135 ; Dillon on Mnnic. Corp., 798.) City officers, by virtue of the authority conferred by charter, lay out and grade a system of streets and adjust sewers and gutters as their judgment dictates is best for the general public. The interests of the individual give way to the public good, and whatever injury he receives is damnum absque injuria. ( Wilson v. Mayor, 1 Den., 595 ; Mills v. Brook- lyn, 32 N. Y., 489 ; 16 Miss., 255 ; Kavanaugh v. Brooklyn, 38 Barb., 234 ; Govrs., etc., v. Plate Glass Co., Term Kep., 794 ; King v. Com. of Sewers, 8 Barn. & Cress., 355.) As between individuals there is no liability against one who so fills up or grades his own land as to cause surface drainage to run upon his neighbor's land. (Goodale v. Tuttle, 29 N. Y., 466, 467; Astley v. Walcott, 11 Gush., 193 ; Luther v. Winnshume Co., 9 id., 171 ; 10 Gray, 28 ; 13 id., 601.) The same rule especially applies as between an individual and a city. (Dickinson v. City of Worcester [Mass.], 7 Allen, 22 ; Gray v. Maine Gen. R. R., 53 Me., 201 ; Adams v. Walker, 34 Conn., 467 ; Parks v. City of Newburyport, 10 Gray, 28 ; Wagner v. L. 1. R. R. Co., 5 N. Y. Sup. Ct. Kep., 164, and reporter's note at the end of the opinion of TALCOTT, J. ; Dillon on Munic. Corp., 798.) Geo. K. Collins, for the respondent. The defendant was not called upon to provide means for taking charge of this surface water, nor wae it liable in damages for results necessarily following from laying out and grading its streets; yet, having diverted this surface water, and undertaken to carry it away in new channels, or permitted its streets and gutters to accommodate this water in its progress to disburse itself, it was the duty of the defendant, having destroyed the usual channels for such water to run in, to have fully provided for all water that might naturally be expected to be diverted into or flow in its streets and gutters, and to have pre- vented the same from flowing upon the plaintiff, where it had never been before. ("Wood's Law of Nuisance, 378, 393, 397, BASTABLE v. CITY OF SYRACUSE. 589 FOUKTH DEPARTMENT, OCTOBER TERM, 1876. 399, and p. 404 ; Bellows v. Sackett, 15 Barb., 101, 102 ; Moran v. McClearns, 63 id., 185, 196 ; Roch. White Lead Works v. City of Rochester, 3 N. Y., 463 ; Foot v. Bronson, 4 Lans., 47, 50, 51, 52 Waffle v. N. Y. C. R. R. Co., 58 Barb., 413, 422, 423 ; 10 Alb. L. Jour., 401, 403 ; Kaufman v. Greesman, 26 Penn., 407, 409, 414, 415 ; Martin v. Riddle [note to above], id.. 416 ; Miller v. Lubach, 47 id., 154, 155.) The defendant as a municipal corporation has no greater exemption from liability than a private person. (Moran v. McClearns, 63 Barb., 196 ; Rochester White Lead Works v. City of Rochester, 3 N. Y., 463, 465.) The defendant in this case was also guilty of negligence and unskillfulness in the construction of its streets and gutters, and is liable for negligence, and for the failure to exercise proper skill in the construction of the same. (Cleinence v. City of Auburn, 4 Hun, 386, 388 ; Conrad v. Trus- tees, etc., Ithaca, 16 N. Y., 158, 171, 172, 173; Barton v. City of Syracuse, 37 Barb., 292, 295 ; McCarthy v. City of Syracuse, 46 N. Y., 194, 196 ; 10 Alb. Law Jour., 403.) E. DARWIN SMITH, J. : In the charter of the city of Syracuse, the mayor and common council of the said city are made and constituted commissioners of highways, and are empowered " to lay out, make, open, regulate, repair and improve highways, streets, lanes, alleys, bridges, public grounds, sidewalks, and alter, widen, straighten and discontinue the same when they shall deem proper, subject to the provisions of law." The common council of said city had undoubted power to pro- vide for the opening, grading and improving of University avenue, and the adoption of an ordinance for this purpose was a legitimate exercise of its legislative discretion and powers. No right of action can arise out of such ordinances, unless the council exceeded their powers, or the agents of the city intrusted with the duty of carrying them into effect were guilty of some misconduct, negligence or unskillfulness. The power to fix the grade of streets and avenues, and prescrib- ing the manner of improving them, in cities, includes, necessarily, the power to change the surface of the ground, to raise it when it is lower than the proposed grade, and cut it down where it ii 590 BASTABLE v. CITY OF SYRACUSE. FOURTH DEPARTMENT, OCTOBER TERM, 1876. higher, and thus effect and change, more or less, the natural flow oi the surplus drainage of the land affected. It is well settled that this consequence, though it may cause some apparent injury to adjacent property owners upon the street improved, gives no right of action, but is simply *' damnum absque injuria / " and that no one had such an interest in mere surface water as to interfere with the public convenience and welfare in this connection. ( Wilson v. Mayor of N. T., 1 Den., 597 ; Mills v. City of Brooklyn, 32 N. Y., 496; Flagg v. City of Worcester , 13 Gray, 601 ; Kava- nagh v. City of Brooklyn, 38 Barb., 234; Dillon on Munic. Corp., 782, 783.) But while no one has any interest in the ordinary flow of surface water, arising from rains and melting snow, which will sustain an action for its diversion, yet it becomes a very dif- ferent question whether the collection of such surface water into single channel, and casting it in a large volume upon an adjacent owner, may not give a ground of action. In submitting the case to the jury, the learned Circuit judge said to them, that " if the evidence led them to believe there was an interference with the natural course of the water, and interfer- ence with the surface water, so as to cast unusual quantities of it upon the land of the plaintiff; if they were satistied, in the next place, that the defendant authorized these acts, authorized this interference, then it is liable, because it entered upon that very act which produced it." The judge further charged, in response to a request of the defendant's counsel, " that there must have been negligence in the construction, in the making of the gutter, or the making of the street, in the way the work was done, to entitle the plaintiff to recover." The counsel for the plaintiff also excepted to what the judge had said in his charge, " that when the city set about doing this work, they must see to it that they do not interfere with the rights of adjoining owners." The judge said, in response, that "that is to be done with the precipitation of surface water." The excep- tion to the charge upon this branch of it is. in substance, an excep- tion upon the single question submitted to the jury in respect to the unusual flow of water cast upon plaintiff's land. It appears, in the evidence in this cause, that in the improve BASTABLE v. CITY OF SYKACUSE. 591 FOURTH DEPARTMENT, OCTOBER TERM, 1876. ment of University avenue, in connection with other streets cross- ing the same, the surface drainage of about thirty-two acres of land, which previously had flowed off to the low lands in no par- ticular channel, was diverted and collected into said avenue, and flowed off, in and over the same, with a descent quite rapid, from the high land above at the head of the street, for much of the distance through said street, till it finally ran over the sidewalks of the same in a large volume on to the plaintiff's land, causing him much injury. I cannot think the plaintiff is bound to submit to such injury, and has no redress for the damage sustained. As between two owners of adjacent lands, one could not con- struct ditches or drains on his own land, thereby collecting the g'vface water over a large territory, and cause such water to flow in a single chanuru upon the adjoining owner, without responsi- bility for the damages thereby occasioned. This was so held in this department in Foot v. Bronson (4 Lans., 47) ; and also in Dickin- son v. City of Worcester (7 Allen, 22) ; Livingston v. McDonald (21 Iowa, 160) ; Bents v. Armstrong (8 Watts & Ser., 40). The case of Mills v. The City of Brooklyn decided nothing in conflict with this view. It decides nothing more than that an action cannot be maintained against a municipal corporation, for its omissions ta legislate upon a subject within its power. It was there held that such action could not be maintained against such corporation for not providing sufficient sewerage for every or a'ny part of the city. The same omission to construct a sewer adjacent to plaintiff 's lot to carry off the surface water that collected thereon, together with a complaint that the defendant had raised the grade of the street adjacent to her premises, were the grounds of action set up in the case of Wilson v. The Mayor of New York (1 Den., 596) ; and, also, in Kavanagh v. The City of Brooklyn (supra), the city had raised the grade of a street adjacent to the plaintiff 's house, leav- ing the house below the grade of the street, where it had been erected upon a lower grade previously fixed. The mayor and common councilmen of the defendant are simply commissioners of highways with enlarged powers. In determin- ing to make any city improvement, in opening, grading or paving streets, laying curbs or gutter-stones, sidewalks, etc., they act under the authority of their charter, and exercise a large discretion. Foi ,392 BASTABLE v. CITY OF SYRACUSE. FOURTH DKPAUTMKNT, OCTOBER TERM, 1876. their acts the city is responsible, precisely as the highway coinmis sioners of towns are responsible for their acts and neglects. The corporation is liable for the positive misfeasance, and for the uegli geuce of its officers, public agents and servants, or persons acting under its authority, while particular officers, doubtless, in most cases, would be exempt from any personal responsibility. It is in respect to this class of acts and duties, and this immunity on the part of the individual aldermen of a city or trustee of a village who may vote for resolutions or ordinances, directing or authoriz- ing public improvements, that judges sometimes speak of the acts and duties as judicial, and deny responsibility on that ground. In Mitts v. Brooklyn (supra), Judge DENIO well said such duties were not judicial, for it did not concern the administration of justice, but did say that it was of a judicial nature because it required the same qualities of judgment and deliberation. I think, with more accuracy and precision, it might be said that such duties were of a legislative character, involving the exercise of discretion and judg- ment, and a regard to many governmental or prudential considera- tions. The duties of all public officers involve and require, more or less, the exercise of discretion and judgment. It is a confound- ing of terms to call the exercise of discretion and judgment in such case judicial. If a municipal corporation directs, by vote, resolution or ordi- nance, an illegal act or thing to be done, the party who proceeds to do the unlawful thing will, ordinarily, be a trespasser, and the corporation responsible for his acts. So if the administrative officer of a municipal corporation is guilty of negligence in the discharge of duties intrusted to him, the corporation will be liable for his neglects. (Dillon on Munic. Corp., T89.) In this view, the defendant was properly held, at the Circuit, responsible for the neglect of its officer, in omitting to remove the large accumu- lation of filth from the street and gutter where it had been depos- ited by the water flowing down University avenue and overflowing the sidewalks, if its superintendent of streets or other officers had knowledge of such accumulation and failed to act with proper dis- patch. It is upon this ground that this same city was held respon- sible for the neglect of its officers to properly construct and keep in repair its sewers in Barton v. Syracuse (37 Barb., 293), and \v WILSON M. LAWRENCE. 593 FOURTH DEPARTMENT, OCTOBER TERM, 1876. McCarthy v. Syracuse (46 N. Y., 194) ; and for the unskillful and negligent construction of a sewer the city of Rochester was held responsible for the damages resulting therefrom in the Rochester White Lead Co. v. City of Rochester (3 N. Y., 464) ; and for unskillfulness and negligence in the construction of a sidewalk the city of Auburn was held liable in Clemence v. Auburn, (11 S. C. N. Y. [4 Hun], 386). Upon both grounds upon which the cause was given to the jury 1 think the charge was substantially correct, and the exceptions thereto not well taken, and that the judgment should be affirmed. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment affirmed. MARION B. P. WILSON, RESPONDENT, v. CYRUS B. LAW- RENCE, INTERPLEADED, ETC., APPELLANT. Interpleader Code, % 122 supplemental complaint. Where upon the application of the defendant an order is made, in pursuance of section 122 of the Code, directing that he pay into court the money, to recover which the action is brought, and that a third person, by whom the same is claimed, be substituted as defendant in his place, the plaintiff should apply for leave to serve a supplemental complaint setting forth such additional facts, as may be necessary to show that he has a right to recover the amount claimed as against the defendant. If the plaintiff fail so to do, and proceed to trial upon the original complaint, the substituted defendant may move to dismiss the same, on the ground that as to him it does not state facts sufficient to constitute a cause of action. In an action by a widow to recover the amount of a policy issued to her upon the life of her husband, which has, prior to his death, been assigned to the defend- ant upon his paying to her the sum of $2,000, a court of equity will not decree the restitution of such policy to her and the~cancellation of the assignment, wi h out requiring her to restore the money so received by her. (Per SMITH, J.) APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. HTTN VOT.. VIII. 75 594 WILSON 7 y. LAWRENCE. FODRTH DEPARTMENT, OCTOBER TERM, 1876. The action was originally brought against the Connecticut Mutual Life Insurance Company to recover $2,500, the amount of a policv of life insurance upon the life of John G. Wilson, who was husband of respondent. After action was brought an order was granted by this court, at a Special Term thereof, upon the application of the insurance com- pany, substituting Cyrus B. Lawrence as defendant in place of said insurance company, and that the insurance company be released from all further liability upon paying the clerk of Ontario county the money payable upon said policy. No notice of the application for said order was given to said Lawrence. Lawrence served an answer, claiming that respondent had, on the 2d day of April, 1873, assigned the policy of insurance to him, and that he was the owner and holder of the policy. The cause was heard on the same complaint as originally served. No summons was ever served on Lawrence, but a copy of the order granted on the 27th day of March, 1876, with the complaint of plaintiff, was served on Lawrence, and he answered by his attorney. The plaintiff claimed to recover on the complaint and the admissions in Lawrence's answer, and was allowed to prove on the trial, against the objection of appellant, the said order of March 27, 1876, and also that the insurance company had paid the money on the policy irfto court. The court denied appellant's motion to dismiss plaintiff's com- plaint, on the ground that the complaint did not state a cause of action against Lawrence, and that the court had never acquired jurisdiction over the subject-matter of the action. The policy in question bears date the 9th day of October, 1868, upon the life of John G. Wilson, husband of plaintiff, and by it the said life insurance company agreed to pay $2,500 to the plain- tiff, her executors, administrators or assigns on the death of said John G. Wilson. The death of Wilson was admitted, and the com- pany, by paying money into court, admitted its liability on the policy in question. It appears by the policy itself, and also by admissions on the trial, that the premiums on the policy were paid by plaintiff herself. On the trial the appellant offered in evidence an assignment of WILSON v. LAWRENCE. 595 FOURTH DEPARTMENT, OCTOBER TERM, 1876. the said policy, bearing date the 2d day of April, 1873. The assignment was executed by the said Marion B. P. Wilson, and wag also signed by her husband and duly acknowledged before a notary public, and Mrs. Wilson acknowledged that she executed the same " without any fear or compulsion of her husband." The considera- tion of the assignment was $2,000, and the assignment covered the policy in question, " together with all sum or sums of money, interest, principal and advantage whatsoever, now due, or hereafter to arise, or to be had or made by virtue thereof." The appellant also proved that he had been in possession of the policy and said assignment, since the date of the said assignment. The court decided that plaintiff was entitled to judgment, award- ing to her the money in the hands of the clerk of Ontario county, and that she have judgment for costs against Lawrence. Henry M. Field, for the appellant. Robert P. Willson, for the respondent. E. DARWIN SMITH, J. : The provision in section 122 of the Code that " A defendant against whom an action is pending upon a contract or for specific real or personal property may, at any time before answer, upon affi- davit that a person not a party to the action and without collusion with him makes against him a demand for the same debt or prop- erty, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct, and the court may, in its discretion, make the order," was designed to give a new remedy as a substitute for and concurrent with a bill of interpleader in equity. (McKay v. Draper, 27 N. Y., 256 ; Patterson v. Perry, 14 Howard, 505.) As the Cole prescribes no mode of proceeding under this sec tion, the practice under it should be, I think, as far as practicable, that adopted by the courts of equity in cases of interpleader in analogous cases. 596 WILSON v. LAWRENCE. FOURTH DEPARTMENT, OCTOBER TERM, 1876. The order made at Special Term allowing the original defend ant, the Connecticut Mutual Life Insurance Company, to pay into court the amount due on the policy of insurance referred to in the plaintiffs complaint, and that Cyrus B. Lawrence be substituted us defendant in the action in the place of the said insurance company, and that such insurance company be discharged from liability t<> either party, and that the said Cyrus B. Lawrence appear and defend the action within twenty days after service upon him of ;i copy of said order and a copy of the complaint, or that the plain- tiff might apply to the court for the sums so deposited, was equiva- lent, I think, in effect, to the order usually made upon bills of interpleader after both parties had appeared and answered, adjudg- ing that the plaintiff in such bill be paid his costs, and upon depos- iting the money in dispute with the clerk, be dismissed from the further prosecution of the action, and that the defendants inter- plead, settle and adjust their claims and demands in respect to sucli fund as between themselves. The said order having been granted ex imrte^ so far as relates to the said Cyrus B. Lawrence, was irregular and void as against him, but this irregularity was, however, waived by his appearance and answer in the suit. Such appearance should be deemed to admit that the said order was properly granted, to the same effect as a defendant in a suit of interpleader would admit by not contesting it, that the bill was properly filed as above stated. The court having clearly jurisdiction of the subject-matter of such action, such appearance by the said Lawrence was also a submis- sion of his person to the jurisdiction of the court, and he is there- fore properly to be regarded as the defendant in said action. Notwithstanding such appearance and submission to the juris- diction of the court, the defendant Lawrence was not debarred the right to raise at the trial the question that the plaintiff's complaint did not state any cause of action against him, and that, admitting every fact therein stated to be true, no judgment could be obtained in the action against him. This objection was clearly well taken, and the motion to dismiss said complaint was erroneously over- ruled. The complaint set out a cause of action against the Commercial Mutual Life Insurance Company ; it contains no allegations relating WILSON v. LAWRENCE. 59? FOUBTH DEPARTMENT, OCTOBER TERM, 1876. to the defendant, or which he was called upon to answer or deny. The order aforesaid was also improperly received in evidence. It was not directed or adapted to prove any issue in the action. Causes must be tried at the Circuit upon the pleadings, and no evidence is admissible not directed to prove some issue made by the pleadings, and no judgment can be rendered for the plaintiff not based upon proper allegations of the complaint. After the making of the said order of substitution, the Con- necticut Insurance Company was dismissed from the action, and the same was to proceed against the defendant Lawrence, to reach the fund deposited with the clerk. The plaintiff should have obtained an order of the court, as suggested in Moak's Yan Sant- voord's Pleadings (p. 358), under section 177 of the Code, allowing him to make a supplemental complaint alleging the facts occurring after the commencement of said action, the making of the order of substitution and the dismissal of the insurance company as a defendant and the substitution of Lawrence in its place, and the deposit of the amount due upon the policy of insurance with the clerk, with such other appropriate allegations in relation to the defendant, as said plaintiff would be required to prove to maintain the action for the restoring to her the policy of insurance and the revocation or rescission of the assignment of said policy to him. The defendant was entitled to have a complaint served upon him containing proper allegations relating to him or his claims, which he might controvert in his answer. Of this right the defendant was not, and could not be deprived by the order of the court certainly not by an ex parte order. He was entitled to have his rights presented, contested and asserted in appropriate pleadings. The judgment upon the findings of the learned judge, I am inclined to think, also, upon the merits, independently of these considerations, was erroneous. He finds that the said policy of insurance was assigned and transferred by the said plaintiff to the defendant Lawrence, the consideration therein, having been received by the plaintiff and her husband, being $2,000, and that thereupon the said policy was delivered to said Lawrence. I cannot think this court should decree the restitution of said policy to the plain- tiff and the invalidity and cancellation of said assignment thue 598 WILSON v. LAWRENCE. FOURTH DEPARTMENT, OCTOBEB TERM, 1876. made for a present consideration, paid in hand to the plaintiff, without requiring her to account for and restore the said sum of $2,000 so received. This proceeding is of an equitable nature, and the fund in court should be distributed or paid out upon equitable principles. No judgment, I think, should have been rendered for the plaintiff which directed any thing more than that the excess over $2,000 and interest to be paid from the fund in court to the plaintiff. This view is upon the assumption that, as the plaintiff before the assignment of said policy was the absolute owner of the same, as her separate estate, she must have received such money to her own use. She cannot be allowed, as I conceive, to keep this money so received by her from the defendant, and also to take the full amount arising from this policy from the fund in court. This would be too gross a fraud for this court to sanction. The judgment should, therefore, be reversed and a new trial granted ; and I think the plaintiff may be allowed, without further application to the court, to make a supplemental or amended com- plaint, as above suggested, and serve the same upon the defendant within twenty days after the entry of the order upon this decision, upon payment af the costs of the appeal ; and the costs, otherwise, to abide the event of the decision. Present MUI.LIN, P. J., SMITH and TA.LCOTT, JJ. Judgment reversed and new trial granted, with leave to plaintiff to make and serve a supplemental complaint within twenty days after entry of the order of within decision, on payment of the 3osts of the appeal, otherwise costs to abide event. McCAIG v, ERIE RAILWAY CO. 599 FOUBTH DEPABTMENT, OCTOBEB TKUM, 1876. JOHN McCAIG, RESPONDENT, v. THE ERIE RAILWAY COMPANY, APPELLANT. Radroad company Jire occasioned by sparks Negligence burden of proof, The mere fact that a fire is occasioned by sparks emitted from the smoke-stacks of locomotives used by a railroad company does not, of itself, establish negli- gence on its part, nor would it be sufficient to authorize a jury to infer negli- gence, unless the emission of the sparks was unusual in degree or character, or the sparks were of an extraordinary size and such as would not be emitted from perfectly constructed locomotives. In a case not within such exception, the burden of proving that the railroad com- pany did not exercise due precaution rests on the plaintiff. Upon the trial of an action to recover damages sustained by a fire started by sparks from a locomotive owned by the defendant, the judge charged the jury " if all the evidence satisfied them that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what that negligence consisted, they would be authorized to find a verdict for the plaintiff." Held, that this was error; that if the jury could not find in the evi- dence any rational ground upon which to impute negligence to the defendant, they should give a verdict in their favor. APPEAL from an order of the County Court of Steuben county, denying a new trial on a motion made on a case and exceptions. The action was brought to recover for damages caused by fire, alleged to have been set by sparks from defendant's locomotives. E. F. Babcock, for the appellants. J. W. <& H. J. Dinnmny y for the respondent. E. DARWIN SMITH, J. : It cannot be doubted that the fire which caused the injury of which the plaintiff complains was caused by sparks, proceeding from one or more of the three locomotives of the defendants which passed the plaintiff's premises immediately before such fire. But the defendants are clearly not responsible for such injury unless such fire was caused by some negligence on their part, or that of their servants or agents in charge of such trains. And the fact that such fire was caused, as must have been the case, from sparks emitted from some one of the defendants' locomotives, did 600 McCAIG v. ERIE RAILWAY CO. FOURTH DEPARTMENT, OCTOBER TERM, 1876. not necessarily imply negligence on their part. (Collins v. N. Y. C. tmd H. R. R. R. Co., 12 S. C. N. Y. [5 Hun], 504 ; Sheldon v. Hud- son R. R. R. Co., 29 Barb., 227 ; 4 Kern., 224 ; Field v. N. T. C. R. R. Co., 32 N. Y., 350.) Negligence in such cases cannot be presumed from the use of fire in propelling their engines by the defendants, for this use was lawful, and duly authorized by the legislature. Nor can it be pre- sumed from the fact that a tire occurred doing damage, but such negligence must be clearly proved affirmatively, (Whart. on Neg., 869, 870, 872 ; Sher. & Red. on Neg., 12.) When the plaintiff rested at the trial, he had proved simply the fact of the fire, and the mode of its origin from sparks, and the damages sustained. He had proved affirmatively no improper act, or the omission of any duty or fact involving any negligence on the part of the defendants or their servants. The judge said, in his charge to the jury, that the " plaintiff had given no direct evidence of any omission or negligence of defendants, and had left it entirely with them to establish the negligence of which he complains, by the circumstances." The fire in question occurred on the plaintiff's premises, situate adjacent to the defendants' railroad, between the villages of Addi- son and Hornellsville, in the county of Steuben. The trains referred to were three extra freight trains going west, following each other between those places, three-fourths of a mile apart. The defendants proved, by their officers, engineers and othoi servants, that the locomotives upon these trains were all first-class engines, with the most approved kind of spark-arresters, all in good order at the time of the fire ; and that they were all inspected on their arrival at Hornellsville, some twenty miles west of plain- tiff's premises, on the day in question, and that the stack, netting and grates were all found in good order. In respect to the class of evidence given by the defendants, the judge charged that they were to take that evidence into consider- ation and give to it such weight as it was entitled to ; and, also, that " now the burden of proof is changed from the plaintiff to the defendants. It rests upon them to satisfy you that they did exercise due precaution. If you are convinced that such was the case, you will be justified in finding a verdict for the defendants. " McCAIG v. ERIE RAILWAY CO. 601 FOURTH DEPARTMENT, OCTOBER TERM, 1876. This portion of the charge was duly excepted to by the defend- ants' counsel. The judge also charged the jury that if they were satisfied that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what the negligence consisted, they were authorized to find a verdict for the plaintiff. This portion of the charge was also duly excepted to. The defendants' counsel also excepted to the refusal of the court to nonsuit the plaintiff, upon motion for that purpose duly made at the close of the plaintiff's evidence. In overruling the motion for a nonsuit, the judge, at the trial, must have held, in effect, that the fire having been occasioned by sparks thrown from one of the defendants' engines, the jury might infer or presume negligence from such fact. In his charge to the jury afterwards, he states that it was not pretended to show what particular negligence was the cause of the fire, but, from the distance at which the fire was caught, it was sought to be shown that it was thrown from the smoke stack, and carried by the wind to some distance. If this were so, it seem.s to me the evidence was not sufficient to warrant a verdict for the plaintiff', without further proof showing that such emission of sparks was unusual in degree or character, or the sparks were of an extraordinary size, and such as would not be emitted from perfectly constructed locomotives. (Rood v. N. Y. and E. R. R. Co., 18 Barb., 80.) But the motion for a nonsuit being overruled, the defendants' evidence was prop- erly given and directed to repel such presumption or inference of negligence, arising from such emission of sparks. The evidence given by the defendants tended to show, and I think did show quite conclusively, that the said engines were properly constructed, and had the best and most approved appar- atus to prevent the emission of fire or sparks. It was error, there- fore, to hold, in respect to such evidence, that the burden of proof was upon the defendants. The defendants did not seek to estab- lish any affirmative issue, but simply to negative the plaintiff's case by disproving the ground upon which it was based. The inference from the fact of the emission of sparks by said locomo- tives was that they, or some one of them, were out of order or improperly constructed. The defendants simply sought to show HUN VOL. VIII. 76 (J02 McCAIG 1-. EKIE RAILWAY CO. FOTTBTH DEPARTMENT, OCTOBER TEKSI, 1876. that such inference was unfounded. The plaintiff had the burden of evidence upon the whole issue, which was to establish negli- gence on the part of the defendants. The other exception to the charge that " if all the evidence satisfied them that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what that negligence consisted," they would be authorized to find a verdict for the plaintiff, is also, I think, well taken. This portion of the charge is very little better than saying to the jury, that if they could find no evidence of any particular improper act or omission of duty on the part of the defendants, and none had been shown or specified by the coun- sel or the court, that would warrant a verdict ; yet if they believed that there was negligence, although they could not specify how it arose, or satisfy themselves in what it consisted, they might, nevertheless, find a verdict upon such belief. This doctrine is unsound and unjust. It would make jury trials a very uncertain and unsafe mode of determining the facts in judicial proceedings. To let a jury find a verdict imputing negligence or crime thus upon conjecture, or without evidence, or such evidence as will bear the light of examination and discussion, ur evidence which shows what constituted the crime or the negligence imputed, could not be otherwise than of dangerous consequence. The party who imputes negligence to another must prove that the defendant, in some act or omission, violated a duty resting upon him; he must show that the accident or injury resulted from the want of some precaution which the defendant might and ought to have resorted to ; and, as WELLES, J., says, in Daniel v. The Metropolitan fiailroad Company (L. R., 3 C. P., 222), '* the plain- tiff should also show, with reasonable certainty, what particular precaution should have been taken." The burden of proof in such case rests upon the plaintiff, and he must clearly prove the facts from which it can fairly be inferred that defendant's negligence, in some certain and clear particular, caused the injury. (Sher. & Red. on Neg., p. 14, 12.) When these facts are not established, the plaintiff should be nonsuited, or the jury should be instructed to find for the defendant. If they cannot find in the evidence any rational ground upon which to base a verdict imputing negligence they should find that no negligence was established. The plain HUBBELL v. BLAKESLEE. G03 FOURTH DEPARTMENT, OCTOBER TERM, 1876. tiff should make out his case by a clear preponderance in the evidence. The judgment should be reversed and a new tiial granted, with costs to abide the event. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Order reversed and new trial granted, costs to abide event. MARIA G. HUBBELL, RESPONDENT, v. GEO. H. BLAKESLEE AND OTHERS, APPELLANTS. Mortgage after payment cannot be made to continue, as a valid security trust in relation to. No trust can be created and attached to an existing mortgage, so as to make it a valid security for any greater amount than that specified in the body and upon the face thereof After the execution and delivery of a mortgage, but on the same occasion, and while the parties were still together, it was agreed between the mortgagor and the mortgagee that the latter should hold the mortgage until his debt was paid, and then assign it to the plaintiff, to be held by her as security for a debt owing to her by the mortgagor. The debt of the mortgagee having been paid, the mortgage was assigned to the plaintiff, who brought this action to foreclose it. Held, that the payment of the debt to the mortgagee extinguished his mortgage, and the assignment to the plaintiff was a nullity. s APPEAL from a judgment in favor of the plaintiff', entered upon the trial of this action by the court without a jury. J. S. Garlock, for the appellants. J. A. Stall, for the respondent. E. DARWIN SMITH, J. : The complaint in this action sets out a promissory note, made by Charles Burgess for $3,150.72, payable to Allen Todd, six months after date (November 1, 1871), and a mortgage given at same date as collateral to said note, and the assignment of the said note and mortgage to the plaintiff, and prays for the usual judgment of 504 HUBBELL v. BLAKESLEE. FOUKTH DEPARTMENT, OCTOBER TERM, 1876. foreclosure aud sale of said mortgaged premises for the non-pay- ment of said note, claiming that there was, at the commencement of said action, actually due on said note and mortgage the sum ot $3,653.25. Several of the defendants in said action, being judgment 01 attaching creditors of the said Charles Burgess, defended on tha ground that said note and mortgage had been paid and satisfied. The proofs in the case clearly show that the said note and mort- gage were afterwards secured also by a conveyance of real estate, together with other debts of the said Burgess, amounting in the aggregate to the sum of $8,626.79. That said Todd had given to the wife of Burgess an agreement for a sale and conveyance to her of said real estate, on the payment of such debt. That such repurchase was never made or debt paid by Mrs. Burgess, but on the contrary she gave up said contract of sale to the executors of said Todd, who received said real estate in full payment of said debt, they at the same time agreeing to assign said note and mort- gage in suit to the plaintiff. The clear legal effect of this arrangement was to pay and satisfy the said note and mortgage. The debt to Todd which said note and mortgage were given to secure was paid ; it no longer existed as a valid claim in law or equity, and the assignment of said note and mortgage to plaintiff was a nullity. It was a simple assign- ment of a paid up security. In this view the defense to said action was complete, and the complaint should have been dismissed. But in answer to this view it was shown at the trial, that after the execution and delivery of said note and mortgage, but on the same occasion and while the parties were together, it was agreed between them that " said Todd should hold said note and mort- gage, as well for the security of the indebtedness of said Burgesg to the plaintiff (being a liability as guarantor in the sum of $3,500) as for his own claim against said Burgess ; " " that is to say, that said Todd should first hold the same as collateral security for h'is own claim as aforesaid, until the said claim should be discharged, and thereupon the same should be assigned to and held by the said Maria G. Hubbell, as collateral security for her said claim as afore- said ; and that Allen Todd accepted and received said note and HUBBELL v. BLAKESLEE. 605 FOURTH DEPARTMENT, OCTOBER TERM, 1876. mortgage upon said agreement and understanding; and directly after the execution and delivery of said promissory note and mortgage to said Todd, the terms of said agreement and the fact that it had been made were communicated both by said Todd and said Burgess, jointly, to said plaintiff, who assented thereto ; and the agreement was made without fraud and in good faith," as set forth in the findings of the judge at Special Term. Upon this finding of fact the learned judge held, as matter of law, "that the said Allen Todd and his legal representatives held the said promissory note, for $3,158.72, of Charles Burgess and the mortgage in suit, in part for the security for his own debt and partly as trustee for the plaintiff; and that said note and mortgage were not, as to said Charles Burgess and his other creditors, paid or satisfied by the payment in full of said Todd's indebtedness against him merely, nor until the payment of said debt of the said plaintiff against him as well ; " and gave judgment for the full amount of the plaintiff's debt, with interest and costs. The legal effect of this decision is, that a complete executed mortgage given as security for a debt of $3,158.72, specified iu said mortgage, is thus duplicated by parol and made a valid and existing mortgage also, for another debt to the plaintiff of $3,500. Or, in other words, a mortgage which upon its luce is security for $3,158.72, is in fact made by parol a valid mortgage for $6,658.72. I cannot see how this can be done, or how such decision can be sustained. It is in distinct conflict with the sixth section of title 1, chapter 7, part 2, vol. 2, page 134 of the Revised Statutes, which is as follows: " No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared unless by act or opera- tion of law or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto, authorized iu writing." A mortgage, though a security for a debt, is also a conveyance of real estate, and is recorded as such, and the registry must show the true amount for which it is made and held. It is doubtless true, as held in Truscott v. King (6 N. Y., 147), 606 ARROWSMITH v. ARROWSMITH. FOURTH DEPARTMENT, OCTOBER TERM, 1876. and other oases cited by plaintiff's counsel, that a mortgage may be given or a judgment confessed to secure future advances to the extent of it,which will be effectual as a security for such advances against subsequent incumbrancers having notice of such mortgage, or judgment and advances. But in these cases the judgment or mortgage are or must be given for a definite amount upon their face, and the advance must be within the limits of such amount. This case is not within the principle of that class of cases ; it is simply an attempt to tack to or graft upon a written and executed mortgage, under hand and seal of the mortgagor, a parol mortgage for one double its amount. This I think cannot be done directly, or by any indirection. It is in the teeth of the statute. (Stoddard v. Hart, 23 N. Y., 556 ; Bank of Utica v. Finch, 3 Barb. Ch. Eep., 293.) No trust can be created and attached to an existing mortgage in such case, that can make it a valid security for any greater amount than that specified in the body and upon the face thereof. The judgment should be reversed and a new trial granted, with costs to abide the event. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Judgment reversed and new trial granted, with costs to abide event. FRANK ARROWSMITH, APPELLANT, v. NELSON ARROW- SMITH AND DEBORAH TALLINGER, RESPONDENTS. Tenancy by the eurtesy subject to debts of wife Surrogate tale of lands Power of, to distribute surplus. "Where a wife, who has acquired title to real estate since the acts of 1848, dies intestate, her husband is entitled to an estate, as tenant by the curtesy, in the lands of which she dies seized, subject to the payment of her debts. The surrogate has power to direct the sale of such lands in payment of the debts of the deceased; and the husband will acquire the same interest in the surplus remaining, after payment of the said debts, as he had in the land itself. Although the surrogate has power under the Revised Statutes (3 Rev. Stat. [6th ed.], 116, and chap. 150 of 1850), to order the investment of such surplus, on th ARROWSMITH v. ARROWSMITH. 607 FOURTH DEPARTMENT, OCTOBER TERM, 1876. ground that the husband is entitled to an estate for life therein, he has no power to direct that such property be applied in payment of the debts of the husband. He can pass upon the claims of creditors of the intestate, but not upon thoa* af creditors of the husband. APPEAL from a decree of the surrogate of Monroe county dis- tiibuting the proceeds arising from the sale of the real estate of Margaret Arrowsmith, intestate, by Nelson Arrowsmith, her administrator. On the 25th day of June, 1875, Nelson Arrowsmith, as adminis- trator of Margaret Arrowsmith, petitioned the surrogate of Monroe county for leave to mortgage, lease or sell the real estate of which Maigaret Arrowsmith died seized, for the purpose of paying her debvs. Si ch proceedings were had as that on the 10th day of August, 1875 a sale of the real property of the in ((state was ordered, and on tho fifth day of November said property was sold for $2,625. Franl Arrowsmith, the appellant, becoming the purchaser. On the 23d day of February, 1876, the surrogate of Monroe count} made a decree distributing the proceeds of said real estate sold, awd it is from this decree that the appeal is brought. The surrogate, in the decree, directs that a life estate of Nelson Arrowsmith in the lands sold be deducted from the purchase money realized on the sale of the lands, $2,600, which life estate the sur- rogate adjudges to be $1,110.69 ; cost of the proceedings, $177.63; debts ol the intestate, $1,233.53 ; balance to Frank Arrowsmith, heir at law of intestate, $103.15 ; making the $2,625. He also directed that the life estate adjudged to Nelson Arrow- Binith be paid to one Deborah A. Tallinger, who was the owner of a judgment recovered against him October 31st, 1866. On June 20th, 1868, Nelson Arrowsmith executed and delivered to Frank Arrowsmith a deed or instrument, in writing, for the con- sideration of $658.23, by which he transferred to the said Frank Arrowsmith certain interests in the property so sold by said Nelson Arrowsmith, as administrator, which he, the said Nelson, claimed to hold in said property. The grounds of error alleged were : That the life estate of Nelson Arrowsmith, as tenant by th* curtesy, should attach and be estimated only in the surplus of the 008 ARROWSMTTH v. ARROWSMITH. FOUBTH DEPARTMENT, OCTOBEH TERM, 1876. estate, after paying the debts of the intestate, instead of the whola amount of $2,625 derived from the sale, and that the surrogate had no power to consider and estimate this life estate. That the deed executed showed only a conveyance, and there was a conveyance only, of the estate of Margaret Arrowsmith. That Nelson Arrowsmith had not conveyed any life estate under these proceedings, and was not entitled to any share of the proceeds of the sale. That Deborah Tallinger, as assignee of the judgment against Nelson Arrowsmith, was not entitled to any portion of the proceeds of this sale as a judgment creditor, as aforesaid, or otherwise. That Frank Arrowsmith, as heir at law of Margaret Arrowsmith and grantee or assignee of Nelson Arrowsmith under the deed of June 20th, 1868, was entitled to the money derived from the sale after paying expenses and debts. L. N. Bangs, for the appellant. The surrogate erred in holding that the life estate claimed by Nelson Arrowsmith in said lands, as tenant by the curtesy attached to the proceeds of the whole estate, before deducting the debts of the intestate. (1 Bouv. Law Dic- tionary, title " Curtesy ; " id., title u Estate," sub. 20 ; Watson v. Watson, 13 Conn., 83-86 ; 1 Wash. Real Prop. [2d ed.], 142 ; id. ? 143, 50 ; In the Matter of Winne, 2 Lans., 21-23 ; 1 Bright, Husband and "Wife, 143 ; Tyler on Infancy and Coverture, 418.) By the proceeding to sell real estate only the interest of the intes- tate can be sold. Any specific charge in any judgment or mortgage maintains its lien, as does any paramount estate. (3 R. S. [6th ed.], 113, 37.) There is no provision in the statute, that an estate as tenant by the curtesy of the husband is to be taken into account, when it existed ; it must have been considered as a paramount estate covering the entire property that descended, and was recognized as one of the charges classed with judgments and mortgages, subject to which the purchaser takes his title. If any estate, as tenant by the curtesy, existed in Nelson Arrowsmith, it has not been sold or conveyed ; he has, therefore, no interest in these moneys derived from the sale; neither has his judgment creditor, Deborah Tallin- ger. ( Vandervoort v. Gould, 36 N. Y., 639-641 ; Gage v. Dauchy 34 id , 293-296.1 ARROWSMITH v. ARROW SMITH. 609 FOURTH DEPARTMENT, OCTOBER TERM, 1876. De L. Crittenden, for the respondents. The common-law estate, by curtesy, was vested by the death of Margaret Arrowsmith. (Billings v. Baker, 28 Barb., 343 ; Beamish v. Hoyt, 2 Robt., 313 ; In re Winne, 2 Lans., 21 ; Hatfield v. Sneden, 54 N. Y., 280 ; Young v. Langbein, 1 Hun, 156.) After the death of the wife this estate became con sum mate ; but only in that event can it be strictly defined " as a continuance of the wife's estate." (Crabb's L. of Real Prop., 1110, 1075 ; Roper on Husband and Wife, 35; In re Winne, 2 Lans., 24.) Her debts, unless charged as spe- cific liens upon the premises, by way of mortgage or judgment, can in no manner be made a basis for affecting the interest or estate of the husband in the entire proceeds of their sale. A devise to executors "for payment of debts," does not affect the estate of tenant by curtesy. (1 Greenl. Cruise on Real Prop., title " Curtesy," 156; Guavara's Case, 8 Rep., 96, a 4 Coke, pts. 7 and 8, p. 324 ; Robertson v. Stephens, 1 Iredell Eq. [N". C.], 250 ; 1 Hilliard Real Prop., 7, 113.) An interest of the husband, as tenant by the curtesy initiate, is a well defined legal estate which will exist after the wife's death. (4 Kent, 22-26 ; 1 Rev. Stat, 722, 5.) As under attachment during the joint lives a judgment against the husband operates, at the instant of its entry, as a lien upon this legal estate. (Day et al. v. Cochran, 24 Miss., 261-273, opinion of SMITH, Ch. J. ; Adair v. Lott, 3 Hill, 186 ; Ellsworth v. Cooke, 8 Paige, 643 ; Van Duzer v. Van Duzer, 6 id., 366 ; Schermerhorn v. Miller, 2 Cow., 439.) Dower controlled by statute, not by rule 85. (2 N. Y. Sup. Ct., 485; Robertson v. Morris, 11 Ad. & Ell. [N. S.j, 916 ; Ewell's Lead. Cas., 478.) Judgment binds and is a charge upon the lands, tenements, real estate and chat- tels real which the debtor has either at the time of the docketing, or which such person shall acquire at any time thereafter. (2 Rev. Stat. [Edm. ed.], 371, 3 ; Roberts v. Whiting, 16 Mass., 186.) That estate became bound by the judgment entered October 31, 1866, assigned to respondent Mrs. Tallinger. If sold, the purchaser would acquire the same title the husband could by grant give to his grantee. (In re Winne, 2 Lans., 25; Shortallv. HickUy, 31 HI., 219; Ganby v. Porter, 12 Ohio, 79; 2 Crabb Real Prop., 119; 1 Roper Husband and Wife, 35; 1 Wash. Real Prop., 143.) Equity will not interfere in favor of a child to prevent due appli- HUN VOL. VHI. 77 610 ARROWSMITH v. ARROWSMITH. FOURTH DEPARTMENT, OCTOBER TERM, 1876. cation in favor of husband's creditor upon this estate. (1 Broom fc Hadley Com., 50, notes ; Van Duzer v. Van Duzer, 6 Paige Ch., 866 ; Roberta v. Whitney, 16 Mass., 186 ; Burd v. Doursdole, 2 Brim [Penn.], 80 ; Mattocks v. Steams, 9 Yt., 326.) Judgment lien being created upon the estate of the husband previous to the sale under the surrogate's order, became, after sale consummated, a lien to the same extent upon the fund. (Ellsworth, v. Cooke, 8 Paige, 643.) Appellant's position that the contracting of a simple contract debt by a married woman creates a lien, even if she expressly charged her estate with its payment in other form than by mortgage or judgment, is not tenable. (Yale v. Dederer, 22 N. Y., 453 ; Ballin v. Dillaye, 37 id., 35-38 ; Maxon v. Scott, 55 id., 251.) E. DARWIN SMITH, J. : On the decease of Margaret Arrowsmith, the intestate, her hus- band, Nelson Arrowsmith, the respondent, undoubtedly succeeded to her estate as a tenant by the curtesy. (Hatfield v. Sneden, 54 N. Y., 285 ; Ransom v. Nichols, 22 id., 110 ; Barnes v. Under- wood, 47 id., 351 ; Matter of Winne, 2 Lans., 21.) Though they were married before the passage of the act of 1848 for the more effectual protection of the rights of married women, her title to the land in question was acquired after the passage of that act. The respondent, however, took such estate subject to the pay- ment of the debts of his wife. During her life the property was absolutely hers and she was entitled to receive the rents and profits thereof to her own use, and all debts by her contracted became a charge upon her property, as much as if she had been in fact au unmarried woman. The surrogate had full power, therefore, to order the sale of the lands of which she died seized, after her personal property was exhausted, for the payment of such debts. The whole property might be, as it was, sold for that purpose, and the interest of the respondent was the same in respect to the surplus, after the pay- ment of such debts and the expenses of the sale, that it would have been in any portion of such lands not required for the pay- ment of such debts and not sold. The surplus moneys arising from the sale represented land, and the surrogate had PO power, I ARROWSMITH v. ARROWSMFTH. 611 FOURTH DEPARTMENT, OCTOBER TERM, 1876. think, to dispose of it definitely. If it was land the respondent would primarily be entitled to possess and enjoy it as tenant by the curtesy for his life. In his hands it would be subject to the claims of his creditors, like other property, and his interest in it might be sold on execution. The surrogate had no jurisdiction to dispose of such property in payment of the debts of the respondent, and could not adjudicate such questions. He could only pass upon the claims of the credit- ors of the intestate. Under section 55 of the statute relating to the proceedings of the surrogate in such cases (3 R. S., m. p. 107 [6th ed., p. 116] ; and chap. 150, Sess. Laws, 1850, p. 315), he might order the investment of such moneys on the ground that the respondent was entitled to the interest thereof during his life, but he could not pay them to him or to the heir, who would only have been entitled to the reversion of the land sold and represented by such money upon the termi- nation of the life estate. The order of the surrogate is erroneous, therefore, so far as it conflicts with these views. It was error to deduct the estimated amount of the value of the life estate of Nelson Arrowsmith from the proceeds of the sale before the payment of the debts of the deceased. These were entitled to priority of payment. But, as the debts of the intestate were all paid, this is a matter of no con- sequence, except so far as the decree allows to the respondent the amount of the balance of such estate, which was estimated at $1,110.69, and directs its payment to him. It was error to pay to the appellant the sum of $103.15, as the heir at law of the deceased. This was so much deducted from the surplus arising from said sale after payment of the debts, but there is no appeal in respect to this item. The question whether the judgment of Mrs. Tallinger was a charge upon the surplus fund, or whether the deed of the respondent to the appellant, dated June 20, 1868, conveyed all the interest of the respondent to the said appellant, were questions which could not be adjudicated by the surrogate. The decree of the surrogate should so far be mod- ified, as to direct him to hold the surplus moneys received from said sale for investment as above stated, subject to the adjudication 612 GREY v. VORHIS. FOURTH DEPARTMENT, OCTOBER TERM, 1876. of the proper tribunal in respect to its disposition, and otherwise it may be affirmed, without costs to either party. Present MDLLIN, P. J., SMITH and TALOOTT, JJ. Ordered accordingly. ELLIOTT L. GREY, RESPONDENT, *>. ALBERT B. VORHIS AND DAVID T. TILLOTSON, APPELLANTS. Mechanic's lien bitt of particulars verification name ; that he had refused to allow him to do so ; that he might have given him encouragement, but did not intend to authorize him to use his name ; that he could not state the conversation. Upon his cross-examination the counsel for the prisoner asked him if he was willing to swear that, from what he did say, the prisoner had no right to infer that he intended to give him authority to use his name, which question was excluded. Held, that this was error ; that the question was proper to test the degree of confidence the witness had in the accuracy of his memory. WRIT of error to the Court of General Sessions of the county of Genesee. The prisoner was indicted by the grand jury of the county of Genesee for forgery in signing the names of Harvey Parmelee, his father, and of Myron Parmelee,. his brother, as makers, to a note for $600, payable six months from date to Windsor Arnold, or bearer, with intent to defraud said Harvey and Myron and Arnold, the payee of said note. On the trial in the Court of Sessions it was proved on the part of the People, by said Harvey and Myron, that their names affixed to said note were not in their handwriting but were in the handwrit- ing of the prisoner, and that they never authorized him to affix their names to said note. The prisoner's counsel, on the cross-examination of Harvey Parmelee, put to him the following question : You are not willing to swear, are you, but from what you did say, he had the right to infer that you gave him authority to use your name ? The district attorney objected to the question. The court sus- tained the objection and the prisoner's counsel excepted. 63/4 PARMELEE v. PEOPLE. FOURTH DEPARTMENT, OCTOBER TERM, 1876. The jury found the prisoner guilty. His counsel caused to be prepared a bill of exceptions, which was signed by the judges of said Court of Sessions, and the case is brought into this court by writ of oertiorari. J. A. Stutt, for the plaintiff in error. C. Fitch Bissell, for the defendants in error. MULLLN, P. J. : To entitle a prisoner to a verdict of not guilty upon an indictment for affixing the name of another person to a written instrument with- out authority, it is not necessary he should prove express authority to affix the name of such other ; it is enough, that from the facts proved it is made out that he had fair grounds for considering that he had such authority." (Rex v. Forbes, 7 C. & P., 224 ; Reg. v. Parish, 8 id., 94; Same v. Beard, id., 142.) In the case last cited COLERIDGE, J., says: If a person had reasonable grounds for believing from the acts of the party that lie had authority to accept, and did in point of fact act upon that, it oould not be forgery. Harvey Parmelee, one witness whose name is alleged to be forged, testified, on direct-examination, that he never authorized the pris- oner, or any one else, to affix his signature to the note. On cross-examination he testified that he haxl signed paper to aid the prisoner, and that he, the prisoner, applied to the witness to allow him to use his, witness', name. He could not state any of the conversation. He says, I may have given him encouragement, but did not intend to authorize him to use my name. The witness subsequently testified that no application was made to him to allow the prisoner to use his name. He also said he did not think he gave the prisoner encouragement that he might use his name, but he said something that he might have taken aa encouragement. If the prisoner might have taken the language of his father as encouragement that he would allow him to use his name, it must be assumed that he did take it as encouragement, or as partial con- sent to use his name. BROWN v. CONUER. 625 FOUKTH DEPARTMENT, OCTOBER TERM, 1876. The witness declared himself unable to state any part of the conversation in which the father used language, which the prisoner might have taken as encouragement that he might use his name; it became proper, on cross-examination, to ascertain the degree of confidence he had in the accuracy of his memory, as to the meaning and effect of what he did say in answer to the request to allow the use of his name. In the absence of the language used there was no other way to ascertain what ground the prisoner had for believ- ing he had authority to use his father's name, than by the question put to the witness and which was excluded. In view of the relation between the prisoner and the father, the inability of the latter to state any portion of the conversation between them, when leave was asked by the former to use the father's name, the question put by the prisoner's counsel on cross- examination was competent and should have been allowed to be answered. The conviction must be reversed and a new trial had in the Court of Sessions, to which the proceedings are remitted. Present MULLIN, P. J., SMITH and TALCOTT, JJ. Conviction reversed and new trial ordered in Court of General Sessions of county of Genesee, to which the proceedings are remitted. ANNIE J. BROWN, PLAINTIFF, . ANSON G. CONGER, AS EXECUTOR, ETC., OF ISAAC 0. BROWN, DECEASED, DEFENDANT. Statute of frauds Contract in consideration of marriage partial performance Chap. 375 of 1 849 Practice when exceptions may be ordered to be heard in tht first instance at the General Term. "Where a man agrees by parol to give a woman certain property in consideration of her marrying him, the subsequent marriage is not such a partial perform- ance of the contract as will induce a court of equity to compel a specific per- formance thereof, notwithstanding the provisions of the statute of frauds. The third section of chapter 375 of 1849, providing that all contracts made between persons in contemplation of marriage shall remain in full force after such mar- HUN VOL. VIII. 79 626 BROWN v. CONGER. FOURTH DEPARTMENT, OCTOBER TERM, 1876. riage, was not intended to repeal the provisions of the statute of frauds, declar ing that every agreement made upon consideration of marriage shall be void unless it be in writing. Where the complaint is dismissed at the Circuit, the court may direct the plain- tiff's exception to such disposition of the case to be heard in the first instance at the General Term, and that judgment be suspended in the mean time. Hoagland v. J/Hfcr (16 Abb. Pr., 108) not followed. MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Term, after an order dismissing the complaint herein. Abram Thorn, for the plaintiff. i S. C. Adams, for the defendant. MTJLLIN, P. J. : The plaintiff alleges in her complaint that on or about the 27th day of August, 1868, it was mutually agreed by and between her and Isaac C. Brown that they would intermarry, and in consider- ation thereof he agreed to pay the plaintiff one-third of his prop- erty of every kind, which he stated was of the value of $13,000 and upwards. In consideration of which promise of said Brown, plain- tiff consented to, and did intermarry with him, and had lived and cohabited with him until his death, in May, 1872. It was further alleged in said complaint that said Brown left a last will, in and by which he appointed the defendant executor thereof; that said will was duly proved before the surrogate of Erie county, who had juris- diction to admit the same to probate, and defendant took upon himself the duties of said office; that plaintiff presented to said executor a claim for the one-third of the estate of the said Brown, but he rejected said claim. The defendant, by his answer, took issue upon the alleged agree- ment to give to plaintiff one-third part of his estate, and set up aa ft defense that this agreement was void, not being in writing. On the trial the plaintiff gave evidence by parol, tending to prove the matters alleged in the complaint, and rested. Where- upon the defendant's counsel moved for a nonsuit, on the ground that the promise, not being in writing, was void by the statute of frauds. BROWN v. CONGER. t>27 FOURTH DEPARTMENT, OCTOBER TEUM, 1876. The court granted the motion aiiJ nonsuited the plaintiff, to which ruling and decision plaintiff's counsel excepted. The court ordered that the motion for a new trial on the plain- tiff's exceptions be heard in the first instance in the General Term. By the third subdivision of section 2 of the statute known as the statute of frauds, it is provided that every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry, shall be void, unless such agreement or some note or memorandum of it be in writing and subscribed by the party to be charged therewith. In the following cases the Court of Appeals has held contracts entered into between a man and a woman before marriage by which the man agreed to deliver property to the wife, or to do some act for her benefit after the marriage, were void when the marriage was the only consideration for the promise : Dygert v. Remerschni- der (32 N. Y. s 629) ; Dung v. Parker (52 N. Y., 496). The same was held by the chancellor in the Matter of Willoughby (11 Paige, 257). It is urged by the appellant's counsel that the marriage in pur- suance of the ante-nuptial agreement is such a part performance, as that a court of equity will euljrce the parol contract notwithstand- ing the statute of frauds. The counsel refers to no case which supports this proposition. Indeed, the cases, as far as I have examined them, are all the other way. In Fry on Specific Performance, 263, it is said marriage is not alone, a part performance of an agreement in relation to it. To hold this would be to overrule the statute of frauds. (Id., 249 ; Lassence v. Tierney, 1 McN. & G., 551 ; Brown on the Statute of Frauds, 439, 440, 444, 449.) In 1849 the legislature passed an act entitled " An act to amend an act for the more effectual protection of the property of married women," passed April llth of that year, the third section of which is in the following words : Section 3. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place. This section, the plaintiff's counsel insists, repeals the clause of the statute of frauds above cited, and hence contracts founded on 628 BROWN v. CONGER. FOURTH DEPARTMENT, OCTOBER TERM, 1876. the consideration of marriage were no longer to be in writing, in order to be valid. It is quite manifest that the legislature did not intend to repeal the clause of the statute of frauds under consideration. That clause was inserted in the statute to protect parties from being bound by parol contracts alleged to be made before marriage, the inducement to, or consideration of which was a future marriage. The same temptation to fraud and perjury was held out to one <>. other of the parties that the preceding provisions of the statute were intended to prevent. If there was any adequate reason for the repeal of the third clause it applies with equal force to the pre- ceding clauses. The legislature has adhered with too much tenacity to the statute of frauds to justify the belief that it intended, in pass ing the act of 1849, to repeal any of its provisions. It would be a great public calamity should the clause of the statute under consideration be repealed. Before the passing of the act of 1849 contracts between a man and a woman entered into before marriage were, as a general rule, void upon the consummation of the marriage, without regard to the subject-matter of the contract or the equitable considera- tions that would require its enforcement. (Curtis v. Brooks, 37 Barb., 476; 1 Black Com., 442 and notes; 2 Kent's Com. [12th ed.],129.) It was to get rid of this harsh and oppressive rule of law that the third section of the act of 1849 was passed, and its operation should not be extended beyond that. When the case in 32 New York, 630, arose and was decided the act of 1849 was in force, and if the court had been of the opinion that the third clause of the statute of frauds had been repealed, the learned judge delivering the opinion would not have been permit ted to assert, without some of the members of the court dissenting from the proposition, that marriage alone did not constitute a valid consideration for a contract. That case must be deemed to be an adjudication of the court of last resort, that the third clause of the statute of frauds has not been repealed. The plaintiffs counsel calls our attention to the case of HoaglancL v. Miller (16 Abb. Pr., 103), in which the General Term of the BROWN v. CONGEli. 629 FOURTH DEPARTMENT, OCTOBER TERM, 1876. first district held, that it is a mistrial to direct that an exception to the dismissal of the complaint be heard at the General Term in the first instance. I am unable to comprehend the roi-on for the conclusion at which the learned judge arrived in the case cited. None are assigned by the judge who delivered the opinion, other than that he says he knows of no authority for directing the exception to be heard in the first instance in the General Term. Section 265 of the Code contained the same provisions in 1863, when that case was decided, that are in it now, and as I understand the section, it expressly authorized the court, before which the cause was tried, to send the exceptions to the General Term to be heard in the first instance. The court at the trial dismissed the complaint and the plaintiff's counsel excepted to the ruling, and it was this exception that was ordered to be heard in the first instance at the General Term. The plaintiff was bound to except to the ruling, or he could not avail himself of the error, if it was one, to dismiss his complaint. Section 265 provides that a motion for a new trial on a case and exceptions or otherwise must, in the first instance, be heard or decided at the Circuit or Special Term, except that when exceptions are taken the judge trying the cause may, at the trial, direct them to be heard at the General Term in the first instance, and the judg- ment in the mean time is suspended, and in that case, they must there be heard in the first instance and judgment there given. There was then an exception by the plaintiff's counsel to an order of the court dismissing the complaint, thus bringing die case within the very terms of the section. We are compelled to decline to follow the case cited, believing as we do that the practice of the plaintiff was entirely correct. The motion for a new trial is denied and judgment of nonsuit ordered for the plaintiff. Present MULLIN, P. J., SMITH and TALOOTT, JJ. New trial denied and judgment of nonsuit ordered for plaintiff 030 CHOUSE v. PADDOCK. FOURTH DEPARTMENT, OCTOBER TERM, 1876. DANIEL GROUSE AND OTHERS, RESPONDENTS, w. OSCAR PADDOCK AND ELIAS F. COOPER, APPELLANTS. Arrest pending suit undertaking liability of sureties on, v>her one only of too defendants can be arrested on execution. Two defendants having been arrested, in an action brought against them by the plaintiff, the defendants in this action executed an undertaking to procure their discharge. Subsequently, upon an execution issued against their persons upon a judgment recovered in the first action, the sheriff arrested one and returned as to the other non est iwoentus. In an action upon the undertaking, held, that the arrest and imprisonment of one defendant did not relieve the sureties to the under taking from their liability for the escape of the other. APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. Charles P. Crosby, for the appellant. The plaintiffs could not have maintained an action against both Paddock and Audrus npon the judgment they recovered, so long as Andrus remained imprifr oned on an execution issued upon such judgment. (Chapman v Hyatt, 11 Wend., 41.) And if both Paddock and Andrus had been imprisoned on such execution, the plaintiffs could not have maintained an action against the defendants as bail for them, so long as such imprisonment continued. (Sunderland v. Loader, 5 Wend., "58.) A release of one of several joint debtors releases all. (Huffman v. Dunlap, 1 Barb., 185.) A release of one of several joint wrong-doers releases all. (Bronson v.Fitzhugh, 1 Hill, 185.) If the plaintiffs had released Andrus from the judgment against himself and Paddock, such release would have operated to dis- charge Paddock also. So long as Andrus remains imprisoned on execution the judgment is surely satisfied as to him, as effectually as if the plaintiffs had released him therefrom. It is submitted that under the authorities the imprisonment of Andrus satisfies the judg- ment pro tern, against both Andrus and Paddock. It is no answer to say that we were bound to produce both judgment debtors, and have only produced one. This we concede, but we claim that by GROUSE v. PADDOCK. 631 FOURTH DEPARTMENT, OCTOBER TERM, 1876. accepting Andrus alone upon our bond to produce them jointly the ordinary rule applies, and that during the imprisonment of Andrus the judgment against him and Paddock is satisfied as to us, whose undertaking is collateral to the judgment, and also for the reason that the imprisonment of Andrus, while it continues, is a discharge of our liability, as bondsmen for him and for Paddock jointly. The plaintiff might have avoided this by refusing to accept of Andrus alone. He could have sued us for our failure to produce the defendants Andrus and Paddock jointly, as our bond called on ua to do. Not having done this, but having treated our bond as one for the delivery of Andrus and Paddock severally, he must abide the consequences. Edwa/rd H. Risley, for the respondents. MULLIN, P. J. : The plaintiff brought an action in the Supreme Court against George F. Paddock and Merritt Andrus, and obtained an order of arrest on which they were arrested, and they were discharged from the arrest on giving the undertaking upon which this action is brought : that the said Paddock and Andrus should, at all times, render themselves amenable to the process of the court during the pendency of the action, and to such as might be issued to enforce the judgment therein. Judgment was recovered in the action against Paddock and Andrus, and an execution thereon issued to the sheriff of Jeffer- son county, who returned the same unsatisfied. Thereafter an execution was issued against the bodies of Pad- dock and Andrus, on which Andrus was arrested and imprisoned ; but as to Paddock, the ca. sa. was returned non est inventus. Thereupon the plaintiffs brought an action against the defend- ants, as sureties in the undertaking given to release Paddock and Andrns from imprisonment. Paddock put in an answer alleging, amongst other things, in bar of the action as to him, the arrest and imprisonment of Andrua on the ca. sa. The judge at the Circuit held that the arrest and imprisonment of Andrus did not preclude the plaintiffs from proceeding against 632 SHAFT v. PHOENIX MUTUAL LIFE INS. CO FOUBTH DKPABTMKNT, OCTOBEB TERM, 1876. Paddock to enforce the debt, and ordered judgment for the plaintiff against the defendant. It is well settled that the imprisonment of a sole defendant is a satisfaction of the debt while it continues. (Sunderland v. Loder, 5 Wend., 59 ; Chapman v. flatt, 11 id., 41.) But I find no case in which it has been held that the imprisonment of one operates as a satisfaction to his co-defendant. The cases cited by appellant's counsel do not support the proposition. The case of Penn v. Remsen is decisive of the question. (24 How., 503.) The judgment must be affirmed. Present MULLIN, P. J., SMITH and TALCOTT, JJ. Judgment affirmed. HENRY SHAFT, ADMINISTRATOR, ETC., RESPONDENT, v. THE PH03NIX MUTUAL LIFE INSURANCE COMPANY, APPELLANT. Policy of insurance power of agent ratification of acts of, by company. A policy of insurance was issued to the plaintiff's intestate, upon which was printed a notice that the agent had no authority to receive any premium after the date of its becoming due, without special permission from the officers of the company. On the twenty-sixth of July, the agent wrote to the deceased stat- ing that the amount of the premium due July twelfth was seven dollars and eighty-eight cents, and that the same might be sent by mail. Between the twenty- sixth and thirtieth of July this amount was sent to the agent, who acknowledged the receipt thereof on the thirtieth, and sent the renewal receipt. The insured died on the first of August. The company received the premium, and never returned or offered to return the same. In an action upon the policy the com - pany claimed that the agent had no authority to receive the premium. Upon the trial no evidence was given as to the authority of the agent. Held, that the acts of tae agent and the company, in accepting and retaining the premium, were such as to authorize the finding that he was authorized to receive the same and to deliver the renewal receipt therefor. Under the circumstances, it was not incumbent upon the insured to apply himself to the company, in order to ascertain whether it had authorized the agent tc receive the premium and deliver the renewal receipt therefor. SHAFT v. FHCENIX MUTUAL LIFE INS. CO. 63S FOURTH DEPARTMENT, OCTOBER TERM, 1876. MOTION for a new trial, on exceptions ordered to be heard in the first instance at the General Terra, after a verdict directed in favor of the plaintiff. Hand, Hale, Swartz & Fairchild, for the appellant. Jfeardsley, Cookingham & Burdick, for the respondent. MULLIN, P. J. : This action was brought to recover $1,000 on a life insurance policy, issued by the defendants upon the life of William E. Shaft. The policy was dated twelfth April ; the premiums were payable quarterly. Indorsed on the policy delivered to the insured was the following, viz. : The assured will please take notice that no receipt for premiums on this policy is valid, unless signed by the president or secretary of the company at Hartford, Connecticut, and that no agent has authority to receive any premiums without first present- ing a regularly signed receipt from the president or secretary, or to interline or otherwise change any policy, or to receive any premium after date of its being due, without special permission from the officers of the company. A quarterly payment came due on the policy on the 12th July, 1873. It was not paid. The agent, who received the application through whom the company communicated with the assured, wrote to the latter a letter dated the 26th July, 1873, informing him that he (the agent) had received a renewal of the policy, and that the amount due was seven dollars and eighty-eight cents, which sum he could send by mail. On some day between the 26th and 30th July, 1873, the amount called for by the policy as the premium due on the twelfth July was sent to the agent, and the receipt of it acknowledged by him on the thirtieth. In the same letter was inclosed the renewal receipt. The insured died on the first of August ; the letter and receipt were received some days after his death. A recovery on the policy is resisted on the ground, amongst others, that the premium not having been paid on the twelfth July the policy became void, and could not be renewed or continued without permission of the com- pany, and no such permission was ever obtained. The answer to the objection to a recovery is, that the premium 684 SHAFT v. PHOENIX MUTUAL LIFE INS. CO. FOTTBTH DEPARTMENT, OCTOBER TERM, 1876. was paid to the agent at Utica, and by him remitted to the agent at Albany and has been retained, and neither returned nor offered to be returned by the defendant. The insured was fully informed of the want of authority of an agent to accept the premium after the day on which it waa pay- able. A notice to that effect was printed on the back of the policy. But the agent might accept it if he had special authority so to do from the company. There is no evidence in the case as to whether he had such authority. Under ordinary circumstances it would be incumbent on the insured to prove the authority, if he relied upon a renewal by acceptance by an agent after the day of payment had passed. In the ordinary course of business the insured deals with the agent, applies to him for and receives the policy from him, and makes to him all payments of premiums unless, perhaps, he resides in the place where the principal office of the company is situated. It was competent for the company to accept the payment after the day, and the insured might make the venture and pay the pre- mium to the agent, leaving him to obtain the consent of the company. When he pays the agent and a renewal receipt is received by him from the agent, he has the right to assume that the agent has sent the receipt with the knowledge and approbation of the company. The money and the receipt, in the ordinary course of business, pass through the agent's hands. The insured, on the receipt of the renewal receipt, might, by way of precaution, inquire of the agent whether the officers had given him special authority to deliver the receipt, and if he should answer in the affirmative, and the company should keep the money, it would not be contended that the renewal was not valid. The conduct of the agent and of the company in this case was just as high evidence that the officers of the company had con- sented to the acceptance of the premiums by the agent, as if it had been uttered in words. The agent knows as well as the insured that he has no authority to deliver a renewal receipt without the approval of the company, when the premium was over due. SHAFT v. PHCENIX MUTUAL LIFE INS. CO. 635 FOURTH DEPARTMENT, OCTOBER TERM, 1876. When he accepted the premium it was his duty to iuform the company of it, and obtain their approval if he could, and it was only in the event that he obtained it, that he was authorized to deliver the receipt. The delivery of it was equivalent to a declaration that he had applied for and obtained such consent. The insured could not get access to the correspondence that passed between the agent and the company. He must depend entirely upon the acts and declarations of the agent. It may be said it was the duty of the insured to apply to the company itself in order to ascertain whether the acceptance of the premium by the agent was approved. This he was not obliged to do, and it would be a serious annoyance if any such practice should be sanctioned, not only to the insured, but to the company itself. Agents are appointed to stand between the company and those insured by it, and the action of the company is learned through the agent. It seems reasonable and just that in a case like this it should be held that the agent was bound to consult the company, as to whether he should accept the premium and deliver the renewal receipt, and if consent was refused, then it was his duty to notify the insured of it ; and if not done, and especially if the premium paid " is not returned, but kept by the company, the company should be deemed to have assented. The plaintiff was not informed that the policy was not properly renewed until 26th September, 1873, when Fillow, an agent of the defendant, called on him and informed him that the policy was void. When the evidence was closed the court inquired of the counsel whether there was any question of fact they desired to be sub- mitted to the jury . No request to submit any question was made, and the court assumed that neither party desired a submission. He therefore ordered a verdict for the plaintiff, and directed the excep- tions to be heard in the first instance in the General Term. The court, with the acquiescence of counsel, assumed to deter- mine the question of fact. These questions were : 1st. Whether the insured was guilty of misrepresentations as to his health in his application for insurance. 2d. Whether the release defendant 036 HILL y. CARLEY. FOURTH DEPARTMENT, OCTOBER TERM, 1876. obtained from the plaintiff was obtained by the fraud of th defendant's agent. On these questions I think the decision of the court was correct. No fraud is proved as to the first question of fact, but it is clearly proved as to the second. The defendant's counsel excepted to the order that the jury ren- der a verdict for the plaintiff, and a verdict was thereupon ren- dered for the amount of the policy, less $150, which had been paid by defendant to the plaintiff as the consideration for the release. The motion for a new trial should be denied and a judgment ordered for plaintiff on the verdict. Present MULLIN, P. J., SMITH and TALOOTT, JJ. New trial denied. BOBEKT E. HILL, HARYEY ROBINSON AND ALFRED HIGGINS, RESPONDENTS, v. E. CLARK CARLEY, IMPLEADED WTTH LUCIEN E. GRAIN AND JOHN J. WHEATON, APPELLANTS. fraudulent representations made to the agent of one firm when acted upon by another firm, by whom such agent is afterward employed liability for. The firm of Lynde Bros., in order to induce a firm in Buffalo to sell them goods, made certain false and fraudulent representations as to their financial condition to Robinson, the salesman of the Buffalo firm. Subsequently the plaintiffs succeeded to the business of said Buffalo firm, and retained Robinson in their employment. Shortly after Lynde Bros, applied for other goods, which were sold to them by Robinson, he relying upon the representation previously made by them. In an action by the plaintiffs to recover the goods so sold, on the ground that they were procured through fraudulent representation, held, that they were not entitled to recover; that, in order to maintain such action, the representations must be made to the vendors, or to some person acting in their behalf, while in this case the representations were made to the agent cf another firm, and before that of the plaintiffs came into existence. APPEAL from a judgment in favor of the plaintiffs, entered upoc the report of a referee in an action of replevin. HILL v. CABLET. 637 FOURTH DEPARTMENT, OCTOBER TERM, 1876. B. T. Wright, for the appellants. Irving O. Vann, for the respondents. MULLIN, P. J. : The action is replevin for a quantity of goods sold by the plain- tiffs to the Messrs. Lynde Brothers, of Marathon, in the county of Oortland, upon false representations, as is alleged, of the ability of the purchasers to pay for them, The price of the goods was $162.40. Harvey Robinson was a son of one of the plaintiff's firm, and intrusted by the firm with determining to whom sales on credit should be made. Robinson had been in the employ of a firm that preceded plaintiffs in the business. The Messrs. Lynde had traded with the older firm and had not met promptly their notes. One of the Messrs. Lynde, in January or February, 1873, applied to Robinson, who was in the employ of such former firm, to sell them a bill of goods on credit. Robinson said to him that it had been rumored that they (the Lynde Brothers), were pretty close up for money, and were being bothered to meet their bills. He (Lynde) said they had been, somewhat. Robinson told him he did not wish to make the account any larger, as they recently asked to renew notes ; and he remarked to Robinson that every thing was all right now ; that they had been looking over their accounts and goods and found themselves in better shape than they expected. Robinson asked him about the indorsement of his father on the note they wanted to renew. He (Lynde) remarked that that was all right now, it made the paper good. Robinson asked him what he thought was the difference between their liabil- ities and their assets. He said he thought their assets were at least $3,000 above their liabilities. Robinson told him he did not wish to injure his feelings in any way by speaking of it, and if they were in that shape, would be willing to sell them all the goods they needed. He, Lynde, again remarked, you need have no fears ; you shall never lose a cent by us. Subsequently, in March, 1873, the Messrs. Lynde applied to one of plaintiffs' traveling agents for a quantity of goods on credit. The order was transmitted to plaintiffs, and by them handed over 638 HILL v. CARLEY. FOURTH DEPARTMENT, OCTOBER TERM, 1876. to Robinson to decide whether the credit should be given. Rely ing on the truth of the representations made the winter before, he consented to sell them, and did sell them, and deliver to them a bill of goods on credit to the amount of $162.40. On the 5th April, 1873, the Lynde Brothers made a general assignment of their property to the persons named as defendants in this action. On examination, it was ascertained that they assigned property only sufficient to pay twenty-five per cent of their liabilities. The referee finds that when the representations were made to Robinson the partners knew they were insolvent. The plaintiff, in bringing the action, proceeded on the assump- tion that the sale was fraudulent, and that title to the property had not passed to the purchasers, by reason of the fraud. To establish the fraud, the plaintiffs called Robinson, who was asked to state the representations made to him by one of the firm of Lynde Brothers. The evidence was objected to as incompetent, as being between persons not parties to the action. The objection was overruled and the testimony received. At the close of the plaintiffs' evidence, the defendants moved for a nonsuit, on the ground, amongst others, that there is no proof that the Messrs. Lynde, or either of them, made any false or fraudulent representations to the plaintiffs to procure the goods in question. The motion was denied, and the defendants' counsel excepted. To render a sale void, because of false or fraudulent representa- tions, it is essential that they be made to the vendor, or to some other person, to be communicated to him. ( Van Kleeck v. Le Roy* 37 Barb., 544; 1 Wait's L. and P., 504; Murfey v. Brace, 23 Barb., 561 ; Durbrow v. McDonald, 5 Bos., 131.) When the representations were made to Robinson, the plaintiffs' firm was not in existence, and, of course, Robinson was in no way connected with them. The evidence fails, therefore, to prove that the Messrs. Lynde ever made any false or fraudulent representa- tions to the plaintiffs. The case of Van Kleeck v. Le Ray seems to us to be decisive of the question ; and as a new trial must be granted, because of refus NORCOTT t>. FIRST BAPTIST CHURCH OF ROME. 639 FOUBTH DEPABTMENT, OCTOBEE TEEM, 1876. ing to nonsuit the plaintiffs, it is unnecessary to consider the other questions presented by the appellants' points. The judgment must be reversed, and a new trial granted, costs tc abide the event, and the order of reference must be vacated. Present MULLIN, P. J., SMITH and TALCOTT, JJ. Judgment reversed and new trial granted, costs to abide event. ANDREW O. NOROOTT AND WILLIAM B. NOROOTT. APPELLANTS, v. THE FIRST BAPTIST CHURCH OF ROME, IMPLEADED .WITH WILLIAM R. WILLIAMS, RESPONDENT. Mechanic's lien bid of particulars effect of failure to serve. If, in an action brought to foreclose a mechanic's lien, the plaintiffs fail to serve with the notice the bill of particulars required by section 10 of chapter 402 of 1854, the remedy of the defendant is to move, before answering, to set aside the proceedings, or stay them until such service be made. Such defect is waived by the service of an answer, and cannot be taken advan- tage of upon the trial. APPEAL from a judgment dismissing the proceedings herein entered upon the report of a referee. The action was brought to foreclose a mechanic's lien filed under chapter 402 of the Laws of 1854. W. Jernan, for the appellants. Johnson <& Preseott, for the respondent. MULLIN, P. J. : Appeal from judgment in an action to foreclose a mechanic's lien. At some time prior to the 5th October, 1872, W. R. Williams entered into a contract with the Baptist Society of Rome to fur- nish the material, and erect and finish a church edifice for the use of said society, the roof of which was to be covered with slate. (340 NORCOTT v. FIRST BAPTIST CHURCH OF ROME. FOURTH DEPARTMENT, OCTOBER TERM, 1876. On the last mentioned day the plaintiffs entered into a contract, in writing, with said Williams to furnish the slate to cover said roof, and lay the same, for which they were to receive $940. At some time prior to the twenty-ninth of September, the plain tiffs filed a notice of lien on the said church in the office of the clerk of Oiieida county, to the amount of $940 and interest from the 30th of January, 1873, when said contract was completed by them for the slate, and labor in laying the same under said contract of the 5th October, 1872. In this notice the church is called the First Baptist Church of Rome. In May, 1872, the plaintiffs served on the Baptist Church of Rome a notice alleging the making of the contract with Williams ; that they had performed the contract on their part entered into with Williams, a copy of which was annexed to the notice, and that the sum of $940 was due them, and that they had filed a notice of lien required by the statute within twenty days of the completion of said contract, and requiring said church to appear in the Supreme Court at the end of twenty days from the service of the notice, and submit to an accounting and settlement in said court of the amount due or claimed to be due to them, for the labor done and materials furnished under the contract with Williams. The petition, or claim, as it is called in the affidavit annexed to the same, then proceeds as follows: The bill of particulars and claim is for the labor and materials named in said contract annexed, and said contract is referred to for said bill of particulars. It then asked judgment that said lien may be enforced under the statute relating to mechanics' liens, or that said house be sold to pay the same and costs, or that the officers of the church be ordered to pay said amount out of any moneys of the church in their hands not paid over to said Williams. At the foot of the said papers is an affidavit, of which the follow- ing is a copy : Andrew O. Norcott, one of the above named claimants, being duly sworn, says that he has heard the foregoing petition or claim read and knows the contents thereof, and the same is true of his own knowledge except as to those matters therein stated on informa- tion and belief, and as to those matters he believes it to be true. The church put in an answer denying performance of the con KORCOTT v. FIRST BAPTIST CHURCH OF ROME, (j FOURTH DEPABTMENT, OCTOBER TERM, 1876. tract by Williams to erect and finish the church, but alleging that he had left the same unfinished ; that the work was defectively done, and denying that there was any thing due him. Other defenses were set up that are not material to be considered here. The case was referred, and on the trial the objection was taken, among others, that the plaintiffs had not served a bill of particulars at the same time with the notice, and that by reason of such omis- sion the proceedings were so defective that plaintiffs were not enti- tled to judgment nor to give evidence of their claim. The referee so held and ordered judgment for the defendants, dismissing the proceedings, with costs Section 6 of chapter 402 of the Laws of 185"4 provides that the person having a lien for labor or materials may bring an action in the Supreme Court, when the amount exceeds fifty dollars, to enforce said lien, which action shall be commenced by serving a notice containing a statement of the facts constituting the claim and the amount thereof, on the owner of the property or his agent, requiring said owner to appear in person or by attorney within thirty days after such service and answer the same, or he will take judgment, etc. By the next section it is provided that within thirty days after service of said notice and bill of particulars, the defendant shall personally serve the claimant or his attorney with a copy of hia answer, duly verified, to the effect that the same is in all respects true or his default may be entered. Section 10 provides that at the time of serving said notice a bill of particulars of the amount claimed to be due from such owner, verified by the oath of the claimant or his attorney, to the effect that the same is true, shall be served on the owner. It will be seen that by section 6 the action is commenced by the service of the notice provided for in that section, nothing being said about a bill of particulars. Section 10 requires the service of the bill of particulars, with the notice, and by section 7 the time for answering is reckoned from the date of the service of the notice and bill of particulars. The question before us is whether, conceding that no bill of par- ticulars was served with the notice, the referee was right in refus- ing to hear the plaintiffs' evidence and dismissing the proceedings. HUN VOL. VIII. 81 642 NORCOTT v. FIRST BAPTIST CHURCH OF ROME. FOURTH DEPARTMENT, OCTOBER TERM, 1876. The defendant, by serving an answer to the notice or complaint, waived the error committed in not serving the bill of particulars. The service of the notice is the commencement of the action, And the service of the bill, is not essential to its commencement. The notice sets forth the nature of the claim, and the bill only gives the details or particulars of it. Section 10 compels the plaintiff to do what the defendant, after the commencement of the action, might compel him to do. I am unable to perceive why the service of a bill required by section 10, should be held to be any more important than the ser- vice of a bill in any other form of action. The omission to serve the bill with the notice could only be taken advantage of by motion, before answer, to set aside the pro- ceedings or stay them until such service was made. Such a motion not being made, the defect was waived by answer- ing. The question could not be raised on the trial. The judgment must be reversed and new trial granted before another referee. Present MULLIN, P. J., SMITH and TALOOTT, J J. Judgment reversed and new trial granted before another referee, costs to abide event. OP OASES NOT REPORTED IN FULL. WILLIAM D. SHEEMAN, PLAINTIFF, v. THE TOWN OF HAMBUEG, DEFENDANT. Claims against town right to sue Town auditors Board of Supervisors Commissioner of highways. MOTION for a new trial on exceptions ordered to be heard in the first instance at the General Term, after an order directing the dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This action was brought by the plaintiff to recover his costs ami disbursements, incurred in defending himself in an action brought against him, while in the discharge of his official duty as commis- sioner of highways of the town of Hamburg, in said county. In 1869 the defendant, by a former commissioner of highways, took proceedings under the statute to open a highway, and filed and recorded an order, pursuant to statute, with the town clerk of that town, opening up the highway. In March, 1870, the plaintiff was elected commissioner of high- ways, and found the record of the highway, and took proceedings to have the same opened, and removed the obstructions. In September, 1870, one Hannah Cockle commenced an action against him for removing the obstructions on the line of the high- way, claiming that the proceedings taken in carrying out the high- way were irregular. A judgment was recovered therein for some- thing over $300, damages and costs. This plaintiff brought this action to recover the costs and dis- bursements incurred in the defense of that suit ; and the judge at Circuit dismissed the complaint, holding that the town was not lia- ble to the plaintiff for his expenses in defending the suit against 644 PRESBYTERIAN SOC. OF KNOXBORO v. BEACH. FOURTH DEPARTMENT, OCTOBER TERM, 1876. him, and ordered the exceptions taken to be heard in the first instance at the General Terra. The court at General Terra say : " The nonsuit was clearly properly granted at the Circuit. The plaintiff' could not maintain an action against the town for the costs and expanses of the litiga- tion incurred and paid by him, as stated in his complaint, within the cases of Bell v. The Town of Esopus (49 Barb., 506), and Marsh v. The Town of Little Valley (4 N. Y. S. C., 116). The claim was unliquidated. If the town auditors have not, the board of supervisors of the county have ample power, and it is their duty to audit the accounts of town officers against their respect- ive towns, and direct the raising of such sums as may be necessary to defray the same. (1 R. S., 367.) If, in a proper case, the t town auditors or the board of supervis- ors neglect or refuse to audit and allow a just and legal claim of a town officer, the party has an ample remedy by mandamus. The motion for a new trial should be denied." New trial denied. Walker & Titus, for the plaintiff. A. C. Calkins, for the defendant. Opinion by SMITH, J. Present MTTLLIN, P. J., SMITH and TALOOTT, JJ. Motion for new trial denied, and judgment ordered upon the nonsuit. THE PRESBYTERIAN SOCIETY OF KNOXBORO, APPELLANT, v. JACOB BEACH, RESPONDENT. Subscription for erection of church payments to be made to treasurer to b* appointed by subscribers not enforceable by church corporation, created after sub- scription. APPEAL from a judgment entered upon an order setting aside the verdict of a jury and dismissing the complaint herein, and from an order denying a motion for a new trial, made upon a case and exceptions. PRESBYTERIAN SOC. OF KNOXBORO y. BEACH. 645 FOURTH DEPABTMKNT, OCTOBER TERM, 1876. This action was brought to enforce a subscription by the defend- ant, of $250 for the purpose of erecting " a Presbyterian church edifice " in the village of Knoxboro. The Presbyterians and Methodists had alternately occupied, for purposes of public wor- ship, a building in that village belonging, so far as appears, not to any religious corporation or society, but to citizens of both persua- sions. Most of the persons of the Presbyterian denomination belonged to, or were members of the Presbyterian society at Augusta Center, a neighboring village. The defendant, with many other subscribers, was a member of the Methodist church, and the project of building a Presbyterian church edifice, seems to have been founded on the understanding, that those persons of the Presbyte- rian persuasion who were interested in the ownership of the build- ing which had theretofore been occupied by the two denominations, should relinquish all their right and title therein to the Methodists, and an express written condition to that effect accompanied the subscription. The difficulty in complying with this condition, or the delay likely to be occasioned by a compliance with it, seems to have led to a misunderstanding between the two denominations, and after some negotiation on the subject, between committees of the two denominations, the Presbyterians proceeded to erect a church edifice on ground and according to plans of their own selec- tion. The defendant, amongst others, protesting that he would not pay his subscription. The contract (subscription) on which the action was brought, was in the following form : " We, the undersigned subscribers, believing that the erection of a church edifice in the village of Knoxboro is required for the promotion of both the convenience and benefit of the inhabitants of said village and vicinity, hereby agree to pay the sums set opposite our respective names to a treasurer to be appointed by us, for the purpose of building a Presbyterian church edifice in said village of Knoxboro, payable, one quarter on each of the following days, viz., 1st April, 1st July, 1st October, 1872, and 1st January, 1873 ; provided the sum of $6,000 is subscribed, otherwise our subscrip- tions are not binding." Dated Knoxboro, New York, 4th March, 1872. To this paper, numerous names purported to be subscribed, for 646 PRESBYTERIAN SOC. OF KNOXbORO y. BEACH. FOURTH DEPARTMENT, OCTOBER TERM, 1876. various amounts, and amongst others that of the defendant for $250. Neither the subscription nor the evidence in the case showed that at the time of the signing of the subscription the organization of any corporation was contemplated or expected. The plaintiff was not then in existence as a corporation. The pre liminary meeting for the organization of the plaintiff as a corpora- tion was not held until the tenth of April. The court at General Term say : " The first question which naturally presents itself is, upon what principle can the plaintiff maintain any action to recover the subscription by the defendant ? " The contract is not with the plaintiff or any of its officers, or in any manner for its use. The contract is to pay a treasurer to be appointed by the subscribers, not the treasurer of the plaintiff, in whose election or appointment the defendant and many other sub- scribers could have no voice. Assuming a treasurer to have been appointed by the subscribers, within the meaning of the subscrip- tion, he does not, as such, represent the plaintiif, and has not, in any manner, transferred the contract to the plaintiff. In tiie case of The Reformed, etc., Church v. Brown (24 How., 76), decided by the Commission of Appeals, stress was placed on the provisions of the statute by which a church corporation, when incorporated, is authorized to take possession of all the temporalities belonging to the church, whether given, granted or devised directly to the church, or to any other person for its use, and to take and recover all the debts, etc., belonging thereto, ' as fully and amply as if the right or title thereto had originally been vested in said trustees,' and in the opinion of the court it is said : ' The facts above stated do not show, nor is it expressly found by the referee, to or with whom the promise or agreement was made, but it does appear that it was made at the time of the formation of the society and that it was made by the subscribers. It will, therefore, in the absence of an express statement or finding, be presumed that it was a legal subscription, in and by which he, in some way, legally obligated himself to pay the sums subscribed for the use and benefit of the society. In all the other cases cited it appears that the subscrip- tion was made for the use and benefit of a particular society or cor- poration. In the present case, no such thing appears, or can ho epelled out from the subscription paper, nor can it be inferred from HINMAN v. PEOPLE. 647 FOURTH DEPARTMENT, OCTOBER TERM, 1876. any evidence in the case ; we are, therefore, of the opinion that the plaintiff has no title to the subscription, conceding that in other respects it was valid and enforceable as a binding contract to pay the sums subscribed. (See Van Rensselaer v. Aikin, 44 N. Y., 126.) The order dismissing the complaint and the order denying a new trial are affirmed." John H. Knox, for the appellant. W. H. Bright, for the respondent. Opinion by TALCOTT, J. Present MULLIN, P. J., SMITH and TALOOTT, JJ. Order dismissing complaint and order denying new trial affirmed. EDWIN HINMAN, PLAINTIFF IN ERROR, v. THE PEOPLE OF THE STATE OF NEW YORK, DEFENDANT IN ERROR. Writ of error to Court of General Session* tested and signed by County Judge a nullity. WRIT of error to the Court of General Sessions of Livingston county, to review the conviction of the plaintiff in error of the crime of burglary with intent to commit rape. The court at General Term say : " This case is not properly before us. It comes before us upon a writ of error to the Court of Sessions of the county of Livingston. The writ of error appears to have been issued by the County Court of Genesee county. It is tested in the name of the county judge of that county and signed by the said county judge. It doe not appear to have been signed or sealed by any clerk of this court. It is upon its face a nullity. It does not bring before this court the proceedings of the Court of Sessions, and confers upon us no authority to review such proceedings. Said writ must be dismissed." Writ of error dismissed. 648 HINMAN v. PEOPLE. FOOKTH DEPAKTMKNT, OCTOBER TERM, 1876. F. C. Pecky for the plaintiff in error. O. Olney, for the defend* ant in error. Opinion by SMITH, J. Present MULLIN, P. J., SMITH and TALOOTI, JJ. Writ of error dismissed. INDEX FAM. ACCEPTANCE What sufficient to vest title Goods manufactured to order payment of price after seeing them, and direction to ship transfers title. See HUBBABD v. O'BRIEN 344 ACCORD AND SATISFACTION What constitutes.] Plaintiff being the owner of two promissory notes for $2,000, made by the defendant, com- menced an action thereon, and also commenced an action against the wife of the defendant. Subsequently the plaintiff received from the defendant $1,500 on the notes and twenty-five dollars for costs and gave to defendant and wife a receipt ' ' in full of notes, agreements or claims of all kinds against these parties," it being understood that " this transaction finishes all suits or litigation against said parties and all suits are hereby discontinued," defendant agreeing to make no claim for certain machinery, then held by the plaintiff as collateral to an indebtedness from one Weed. Held, that this was an accord and satisfaction, and that the plaintiff could not maintain an action to recover the balance due upon the notes. PARDEE v. WOOD 584 ACCOUNT Residuary legatee action for, as to items of personal property received by life beneficiary, no inventory having been made maintainable. See WILLIAMS v. PEABODY 271 ACTION Cause of.] Where a complaint alleged that defendants received from the plaintiff his promissory note for $534, indorsed by one Sanborn, upon the agreement that they would return the same before maturity; the maturity of the note; a failure to return the same and a sale thereof by defendants before maturity, held, that it stated facts sufficient to constitute a cause of action. LOOMIS v. MOWRY 311 Bight of party to a separate action for a demand although at the time an action is pending against him by the same parly, wherein he could have set up tuch demand as a counter-claim. See INSLEE v. HAMPTON 280 Right of, acquired by mortgagee by reason of assumption of mortgage by grantee may be released by grantor. See STEPHENS v. CASBACKER 118 To recover town moneys, must be brought by supervisor 1 R. 8., 866, 1 2 R 8., 473, 92, 93 Code, 113. See TOWN OF CHAUTAUQUA v. GIPFORD 152 Where a nolle prosequi is entered with defendant's assent, it is a sufficient end of the prosecution to support an action for malicious prosecution. See MOULTON v. BEECHER lOt To establish and restore portions of a destroyed wul Supreme Court hat jurisdiction of Surrogate's Court hat not. See HOOK v. PRATT 102 Joinder of administrator and hefr in an action for an accounting eon- eeming the affairs of a partnership is proper although the interest* of the teveral defendants did not accrue in the same right. Bee SKIDMORB . COLLIER SO Assumption of mortgage by grantee. See VROOMAN v. TURNER 78 By mortgagee on covenant between grantor and grant* assuming pay- of tJie mortgage maintainable. See CAMPBELL v. SMITH 650 INDEX. ACTION Continued. When maintainable by stockholder, against trustees and company. See YOUNG e. DRAKE 61 To set aside assessment as illegal not maintainable, unless defects in assess- ment be sucJi as would not appear in proceedings to enforce the lien of the assess- *nent. See BOYLE v. CITY OF BROOKLYN 82 By one partner against another but not against all when maintainable See WILLS v. SIMMONDS 189 Urtder t?w Code 144, sub. 6, means " any'' cause of action. See MACKEY t>. AUER 180 For assault and battery Costs Code, % 304 when title to real prop- erty involved. See LILLIS v. O'CONNOR 280 To restrain waste, by vested remainderman. See WILLIAMS v. PEABODY 271 Certificate when made prerequisite of payment unreasonable refusal to give effect of. See BANCKER v. MAYOR 409 For account by residuary legatee to compel discovery of items of per- sonal property in hands of life beneficiary. See WILLIAMS v. PEABODY 271 Excise law prosecution by third person for violation of discontinuance of, by overseer of the poor not allowed. See RECORD v. MESSENGER 283 Revival of joint debtors death of one during pendency of action revival of against her representatives. See MASTEN v. BLACKWELL 313 Against judge for unlawful imprisonment when not maintainable although sentence is unauthorized. See LANGE v. BENEDICT 862 For salary by one unlawfully kept out of office liability of city fa payment. See DOLAN v. MAYOR 440 To recover damages against a fraudulent purchaser on a foreclosurt sale a release by plaintiff of all interest in the property to a person acquiring title from such purchaser, when, no defensf to the action. See DUSENBURY v. CALLAGHAN . 641 No cause of exists after surrender and cancellation of promissory note though it is only paid in part. See KENT v. REYNOLDS 559 Upon sheriff's bond when permitted statute mandatory 'per- missive. See PEOPLE v. CONNER 538 ADJOURNMENT Of sale in foreclosure after stay of proceedings upon appeal under section 341 of the Code and before justification of sureties on under- taking. &fc WARD*. JAMES 526 ADMINISTRATRIX Negligence of, in keeping money of the estate in house, instead of in bank. See CORNWELL T. DECK 122 ADMIRALTY COURTS Have not exercised jurisdiction to order sale of vessel owned by tenants in common, except in those cases in which the opposing interests are equal. See ANDREWS v. BETTS 82S ADULTERY Condonation of-~by contract between husband and wife. See VAN ORDER v. VAN ORDER 818 INDEX 651 ADVERSE POSSESSION Substantial inclosure.] 1. In an action brought to recover damages for a trespass committed upon the land of the plaintiff, the defendant claimed to hold the lot by adverse possession. It appeared up >n the trial that the lot was inclosed on one side by a highway, on two Rides by fences and on the remaining side by a distinct Hue of marked trees from corner stake to corner stake. Held, that the lot was not protected by a substantial inclosure within the meaning of subdivision 1 of section 85 of the Code. POPE v. HANMER 266 2. Cultivation and improvement Code, % 85. ] It further appeared upon the trial, that the defendant had occasionally used the lot, (a wood-lot) as a pasture, and that he had, now and then, taken wood and timber from it for shingles and staves. Held, -that this did not show it to have been usually cultivated or improved, within the meaning of subdivision 2 of section 85 of the Code. Id. AGENCY Revoked by death Obligation created after death of principal not enforceable against his representatives.] An agreement, was executed by cer- tain shareholders of a manufacturing company, reciting, in substance, that in order to raise money to carry on its business, notes should be made from time to time, and indorsed by one or more of them, and that in case any of the indorsers of such paper should incur any loss by reason thereof, each should pay his equal proportion thereof. In an action by one of them, who had indorsed and paid such paper, to recover from the executors of H., another signer of said agreement, his proportion thereof, the complaint not alleging that saitl note was indorsed in the lifetime of H. : ffeld, on demurrer thereto that it did not state facts sufficient to consti- tute a cause of action, that the agreement, in substance, created an agency by which any shareholder could bind another, if not to the holder of the paper, at least tu the other joint signers of the agreement, as a surety for the corporation ; that as an agency is revoked by the death of the principal, the power to bind H. ceased at his death, and as no obligation by indorsement was alleged to have been incurred by the plaintiff during the lifetime of H., and on his death any authority to bind him or his estate ceased, no cause of action was stated. Held, further, that the contract imposed a joint, and not a several or joint and several liability, upon the signers of it; that there was no considera- tion for the agreement except the suretyship; that formerly the liability of any one of the joint contractors was discharged at law by death, and no action could be maintained against his personal representatives in equity where the joint obligation was founded solely upon the consideration of suretyship, but under the modern doctrine, the representatives of H. would probably have been liable to contribute for any liability incurred by the plaintiff, for an indorwpment made during the lifetime of H. HELMER v. ST. JOHN 168 AGENT Of insurance company powers of ratification of acts by com- pany. See SHAFT v. PH is, under chap. 838, of 1858 Assessment Nmo York city. See MATTER OF MOORE 518 ALIENS Itetident, not required to give security for costs, union residence i ihown to be inerely temporary. See NORTON v. MACKra 590 ANOTHER STATE Laios of knowledge of existence of question of foot, not ofla/U). See PALMER v. MINAR 84S 652 INDEX. APPEAL To County Oourt when security on, jurisdictwnal Code, 352-355 cAop. 392 of 1863.] 1. On appeal froin a Justice's Court, before the act of 1863 (chap. 392), security was only required when a stay of execu- tion was desired; since that act, where, by the terms of section 352, the appellant is entitled to a new trial, security is required to perfect such appeal, and give jurisdiction thereon to the County Court. KONTZ v. LIGHT, 14 2. Appealable order.] A refusal to dismiss such appeal when security has not boen filed affects a substantial right, and thu order refusing it is ftppealable. Id. ARREST Pending suit undertaking liability of sureties on, where one only of two defendants can be arrested on execution. ] 1. Two defendants having been arrested, in an action brought against them by the plaintiff, the defend- ants in this action executed an undertaking to procure their discharge. Sub- sequently, upon an execution issued against their persons upon a judgment recovered in the first action, the sheriff arrested one and returned as to the other non est inventus. In an action upon the undertaking, held, that the arrest and imprisonment of one defendant did not relieve the sureties to the undertaking from their liability for the escape of the other. GROUSE v. PADDOCK 630 2. Evidence of prior arrests not proper to impeach character.] Upon an indictment for forgery the prisoner, on his examination in his own behalf, was asked, with a view of impeaching his character, "How many times have you been arrested ? " Held, that the question was improper, as the mere fact of his arrest had no tendency to impeach his character in any particular. BROWN v. PEOPLE 563 ASSAULT AND BATTERY Action for Code, 304 costs when title to real property involved.] 1. In an action for an assault and battery, the defense was : (1) general denial, (2) non nssault demesne, (3) justification in defense of defendant's real property. The plaintiff recovered a verdict of six cents, and having obtained a certificate from the county judge that the title to real property was put in issue by the pleadings and came in ques- tion upon the trial, he taxed full c-osts. Held, that this was proper, and that a motion to strike from the judgment all costs in excess of six cents waa properly denied. LILLIS o. O'CoNNER 280 2. County judge's certificate, conclusive.'} Such certificate is conclusive upon the taxing officer, to show that the title to land came in question upon the trial. Id. ASSESSMENT One resolution providing for two chapter 818 of 1868 chapter 245 of 1875 regularity of proceedings under.] 1. The board of trustees of the village of Portchester acted upon two petitions, one for grading Han- seco and the other for grading Irving avenue. There was but one resolution which, though it embraced both streets, yet, in legal effect, established sepa- rate assessment districts for each, and the subsequent proceedings were con- ducted thereunder. Held, that the proceedings were not open to the objec- tion that there was only one proceeding for the grading of both streets. MERRITT . VILLAGE OF POUTCHKSTER 40 2. Bids time of opening.] A. requirement in a charter that bids shall be opened on the day mentioned in the notice or on the adjourned day, and that the trustees shall "then" determine whose is the most favorable, does not restrict them to an instant determination; they have all the time requi- site for a correct conclusion, the word " then " being used in the sense of " wm afterward" or "immediately." Id. 3. Report containing charges effect of its confirmation.] Where a charter requires the trustees to determine upon and fix, but specifies no form in which the trustees are to express their decision as to the proper compen- sation for work done, a confirmation of the report containing the charges for expenses, counsel fees, etc., is a sufficient compliance with the provisions of the charter. Id. 4. Notice publication of objections. J A statute providing that before completing and signing the report, the commissioners must publish, once in each week for two weeks successively, a notice of a time and place, INDJtX. 653 ASSESSMENT Continued. PABB when and where the parties interested can be heard, held, to mean that there shall be two publications, one in one week, and the other in the next week, and not that two weeks must elapse between the first publication and the d ty designated for the hearing. Held, further, that a notice requiring the objections to be in writing was invalid, the statute conferring no authority that such hearing shall be re- stricted to.written objections, and that this "objection by the plaintiffs would have been fatal to the proceedings had they disregarded the notice. But having appeared before the commissioners pursuant thereto and had the benefit of a hearing, they thereby waived all defects therein. Id. */. Action to set aside as illegal defects in must not be such as would appear in, proceedings to enforce.} In an action to vacate and set aside an assessment as illegal, it is not enough to allege that the proceedings, although in fact invalid, appear on their face to be regular, but to sustain the action it must appear that the defects alleged are such as would not necessarily appear in proceedings to enforce the lien of the assessment. BOYLE v. CITY OF BROOKLYN 83 6. Wften vacated under chapter 580 of 1872.] Under the provisions of chapter 580 of 1872, providing that no assessment shall be set aside except in cases in which fraud is shown, a mere defect of authority in the officer contracting for the work is not sufficient to authorize the court to vacate the assessment. Accordingly, upon an application to vacate au assess- ment on the ground that the commissioner of public works had no authority t<> make the contract for the work, without a previous resolution of the com- mon council, held, that whether or not he had authority so to do was imma- terial, as a mere defect therein would not authorize the court to vacate the assessment. MATTER OF N. Y. PROT. Ens. PUBLIC SCHOOL 457 7. Payment of, under protest Voluntary payment right to recover amount paid.} The plaintiff received a notice from the collector of the city of New York, stating that an assessment had been made on a lot owned by him, payment of which was expected to be made on or before July twenty- seventh, and that unless paid before that day interest would be charged at the rate of seven per cent from the date of confirmation. Plaintiff saw the col- lector, told him the matter was in litigation and that if he paid, it would be under protest; the collector said, "you can do as you like," whereupon plain- tiff paid the amount. Subsequently, upon a petition filed by the plaintiff and others, the assessment was vacated. In an action brought by him to recover back the amount so paid, held, that as the payment was made voluntarily and with full knowledge of all the facts, the action could not be maintained. PEYSER v. MAYOR 418 8. Purchase of property subsequent to confirmation presumed to have been made subject to Party aggrieved wlw is, under chap. 338 of 1858.] Where a person moves, under chapter 338 of 1858, to vacate an assessment upon property purchased by him subsequent to the confirmation of the assess- ment, it rests upon him to show that he is aggrieved thereby. In the absence of any evidence on this point, it will be presumed that he purchased sub- ject to the assessment, and that the same formed part of the consideration given by him for the property. MATTER OF MOORE 518 Irregularity in, cured by legislative act Law directing that property defectively assessed for local improvement be taxed to the amount of the assess- ment validity of Constitution, art. 7, 13 requiring tax and object to be stated relates solely to State finances, and does not govern assessments for local improvements chap. 297 of 1861 chap. 883 of 1869 construction of. See GUEST v. CITY OF BROOKLYN 97 Gertiorari to review where property is generally assessed at one-third its value, in violation of the assessors 1 duty court vri'l not reduce assessment of property assessed at a greater rate, to same proportion. See PEOPLE EX REL. R, W. AND O. R. R. Co. v. DIXON 178 Injunction restraining city from confirming no defense against eon- tractor entitled to his pay on the confirmation, unless diligence it shown to re- move it. Set BOWERY NAT. BAKE c. MAYOR 224 654 INDEX. ASSESSORS Acts of, retiewable by County Court, Set MATTER OF N. Y. CATHOLIC PBOTECTOBY 91 ASSETS Of corporation on dissolution, because of disagreement t/f trustees chapter 442 of 1876 rule of. See MATTER OF WOVEN TAPB SKIBT Co 508 ASSIGNMENT WiOtout preference failure to jtte bond required by 8, chapter 348 of 1860 effect of bankruptcy act. See VON HEIN . ELKUS 518 ASSUMPTION Of mortgage by grantee right of grantor Judgment roll in foreclosure against grantor evidence against grantee, although not notified of action. See COMSTOCK e. DROHAN 878 ATTACHMENT Seizure what acts of plaintiff a ratification of. See HERRMAN v. GILBERT 258 ATTORNEY Entitled to notice of examination of party before trial, when he has appeared for the party in the action. See PLUMMKK v. BELDEN 455 Responsible for the insertion of irrelevant and scandalous matter in plead- ing costs imposed on him therefor. See McVEY . CANTRELL and TADDIKEN v. CANTRELL 522 ATTORNEY AND CLIENT Agreement to prosecute action fcr one-half the damages fraudulent settlement by client Relief of attorney.} 1. Attor- neys agreed with a party who had been injured by a collision on a railroad, to prosecute an action for him, without expense to him, against the company for the damages sustained, in consideration of one-half of the damages to be recovered. On the service of the summons in the action on a director of the company, he was informed that the attorneys had an interest in the suit for then* services, and the company must not settle without their con- sent. Afterward the company obtained, in consideration of $1,000, a release from the plaintiff (without the knowledge or consent of his attor- neys) from all claim for damages. Held, that it would be unnecessary and unjust to set aside the release, as that would take from the defendant the protection which it afforded it against the plaintiff; but it was the duty of the referee before whom the cause was tried, having found the release to be fraudulent, to have held it void as against the attorneys, and complied with their request and ascer- tained the damages sustained by the plaintiff, and given judgment against the defendant for one-half the amount thereof. COUGHLIN v. N. Y. CEN. AND HUD. It. R. R Co 136 2. Evidence defense not pleaded to controvert matter set up in answer admissible.] The defendant having insisted that the referee could not try the question whether the release was obtained fraudulently, as that was not one of the issues referred to him : Held, that as the release was set up as a defense in the answer, and by the Code all allegations in the answer are to be deemed denied, unless they constitute a counter-claim, in which case a reply must be put in, the plain- tiff had a right to prove on the trial any matter that constituted an answer to the matter set up by the defendant as a defense, and the evidence that the release was obtained by fraud was a perfect answer to that instrument as a defense, if it was established by the evidence. Id. ATTORNEY-GENERAL Cannot be compelled to bring action of quo war- ranto. See PEOPLE EX BEL. DEMAHEST v. FAIRCHILD 884 AUCTIONEER'S FEES Foreclosure sale.] No fees can be allowed to an auctioneer for services rendered upon the adjournment of a sale by a referee in foreclosure See WARD v. JAMES KM INDEX. 655 BAILEE Lien of not lost, because of not being expressed in receipt.] One B; iggs, the owner of certain barley, which he had transferred to the plain- tiff as collateral to a loan, being desirous of having the same malted, an agree- ment was entered into between Briggs, the president of the plaintiff, and the defendant, by which the latter agreed to malt the barley and receive twenty cents per bushel for so doing. At that time he delivered to the plain- tiff a paper, by which he agreed to hold the malt subject to the written order of the plaintiff, nothing being stated therein as to the charges for malting or any lien therefor. The defendant having received and malted the barley, refused to deliver the same until his charges for so doing were paid. Held, that the law gave him a lien upon the malt for the amount agreed to be paid, and that the mere absence of a reservation of such lien in the receipt, by which he agreed to hold it subject to plaintiff's order, did not deprive him thereof. HAZARD v. MANNING 613 BANKRUPTCY ACT Gen&ral assignment without preference. ] The right to make a general assignment for the benefit of creditors is not suspended by the provisions of the bankrupt act, provided such assignment contains no preferences and is not made with intent to defraud the creditors of the assignor. VON HBIN v. ELKUS 515 BANKRUPTCY Injunction sheriff Uablefor release of levy on the prop- erty of a judgment debtor on his being adjudged a bankrupt. See ANSONIA BRASS AND COPPER Co. v. BABBITT 157 Fraudulent concealment of what is. See ROBBLINQ v. DUNCAN 503 BILL OF EXCEPTIONS Settlement of ease presenting only questions of law insertion of all the evidence in, not proper Statement of facts established by the evidence substituted for tJie evidence, when. See MAKCKWALD v. OCEANIC STEAM; NAV. Co 547 BILL OF LADING Parol contract when not merged in subsequent writ- ten contract. See HILL v. SYRACUSE, B. AND N. Y. R. R. Co 296 Delivery of goods Several bills of lading the holder of which bill enti- tled to. See MERCHANTS' BANK v. UNION R. R. AND TRANS. Co 249 BILL OF PARTICULARS Effect of failure to serve, with the notice in an action, to foreclose a mechanic's lien. See NORCOTT v. FIRST BAPTIST CHURCH OP ROMS 639 Verification of in action to foreclose mechanic's lien. See GREY v. VORHIS 812 BINGHAMTON Bridge company decision of "highest tribunal" Acts done under Protection against penalty or forfeiture tJterefor. See CHENANGO BRIDGE Co. v. PAIGE 292 BON A FIDE PURCHASER Of promissory note effect of garnishment process on. See SIMON v. HUOT 878 Of promissory note notice, sufficient to require inquiry. See MABIE v. JOHNSON 800 Of negotiable paper, invalid in hands of payee recovery by, restricted to amount paid. See TODD v. SIFELBOURNE 510 BRAKEMAN Employment of scope of.] A brakeman, put in charge of railway cars with a view to securing the proper and orderly seating of passengers, forcibly ejected the plaintiff, who c'isobeyed his direction. Held, that in so doing the brakeman must be deemed to have acted within the scope of his employment, and that the company was liable in case he used excessive and unnecesssary force. PECK t. N. Y. CBN. AND HUD. R. R. R. Co W 556 INDEX. BROOKLYN Justice's Court in construction of section 16, chapter 102, Law* of 1850 in reference thereto. See DoTJoiAss v. REILLY 86 BOUNDARIES Known and fixed boundaries control courses and distances. See Runs v. LAW 1 251 BUILDING linpropei construction of building, causing snow to fall from roof.} Where the roof of a building, in a large city, is so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk, and there is uo adequate guard at the edge to retain it, it is, in judgment of law, a nuisance. WALSH v. MEAD 387 BURDEN OF PROOF In action on a note made by a lunatic upon whom. See HICKS v. MARSHALL 327 fire occasioned by sparks from a locomotive on whom it lies to show due caution was or was not exercised by the railroad company. See McCAie e. ERIE RAILWAY Co 599 CANCELLATION And surrender of note, not paid in fuU no right of action exists thereafter for amount unpaid. See KENT T. REYNOLDS 559 CASE Settlement of, presenting only questions of law insertion of all the evi- dence in, not proper statement of facts established by the evidence substituted for Hue, evidence, when. See MARCKWALD v. OCEANIC STEAM NAV. Co 547 CAUSE OF ACTION Complaint when sufficient Promissory note signed "J". & McOlure, agent" liability of principal upon.} The complaint alleged that the defendant, by J. S. McClure, her agent, made and delivered her pro- missory note, in writing, setting forth a copy of the note, signed J. 8. McClure, ageut, and alleging that the consideration of the note was goods sold to the defendant. The defendant demurred. The demurrer was sustained at Special Term on the grounds that the note did not refer to the defendant by name, and did not show that McClure had authority to sign as her ageut. Held, that the complaint stated facts sufficient to constitute a cause of action. That, under the allegation that the defendant made and delivered her promissory note, it would be competent to show that the person signing the note was duly authorized by her so to do. The fact that the name of the defendant did not appear upon the face of the note, would not prevent the plaintiff from introducing evidence to show that she was bound thereby. MOORE v. McCLURE 557 Under the Code 144, sub.. 6, means "any" cause of action. See MACKEY v. AUER 180 CERTIFICATE When made prerequisite of payment unreasonable refusal to give effect of.] Where an act authorizing the construction of a court- house in the city of New York provided, that payments therefor should be made by the city upon the production of vouchers, approved by the commis- sioners by whom the building was to be erected, a refusal on their part to approve a bill on the ground that they have no personal knowledge of the matter is unreasonable, and relieves the applicant from the necessity of com- plying with this provision of the act. BANCKER v. MAYOR 409 CERTIOR ARI To review street openings issuing of, discretionary. ] 1. The writ of certiorari is an appropriate remedy to review proceedings for the opening and grading of streets. Although there is no statutory limitation of tune within which the writ must be obtained, it is not one of right, and the court can, in its discretion, refuse it in any case, and quash it where it has been improperly granted. PEOPLE EX REL. ACKERLY v. CITY OF BROOKLYN 5< 2. Must be applied for within two years.] The general rule has been to quash the writ where application therefor has not been made in due season. and due season has usually been limited to two years. Id. INDEX. 657 CJEELTIORARI Continued. PAM . 3. To review assessment.] When property is generally assessed at one- third its value, in violation of the assessors' duty the court will not reduce the assessment of property assessed at a greater value, to the same proportion. PEOPLE EX REL. R., W. AND O. R. R. Co. . DIXON 178 GESTT7I Q,UE TRUST Not a necessary party to an action, to enforce a claim for services rendered to a trust estate. See STANTON v. KING 4 CHARACTER Impeachment of evidence of prior arrest inadmissible. See BROWN . PEOPLE 583 CHOSE IN ACTION Right to use of party watt when a chose in action merely. See MCDONNELL v. CULVER 165 CHURCH Subscription for erection of payments to be made to treasurer to be appointed by subscribers not enforceable by church corporation created after subscription. See PRESBYTERIAN SOCIETY OP KNOXBORO v. BEACH 644 CITY Not liable for failure or refusal of its officers to perform duties imposed on them, when not in the interest of or prescribed by the charter of the municipality. See SAW-MILL Co. v. CITY OP BROOKLYN 87 UlVJ-Li DAMAGE ACT Chapter 646, Laws of 1873 Recovery of damages against owner permission or knowledge of owner must be proved, not presumed or inferred.} 1. A recovery can only be had against the owner of a building where intoxicating liquors are sold, under the clause of chapter 646, Laws of 1873, which provides that " any person or persons owning or renting or permitting the occupation of any building or premises, and having knowl- edge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained, and for exemplary damages," upon clear and satisfactory proof establishing the permission to occupy, with knowledge that intoxicating liquors are to be sold therein ; and neither the permission or the knowledge can be presumed or inferred. MEAD v. STRATTON 148 2. Chapter 646, Lawn of 1873, constitutional.] Chapter 646, of the Laws of 1873, known as the civil damage act, was within the clear discretion of the legislature as part of its police and sovereign power, and is not within any of the prohibitory clauses of the Constitution. FRANKLIN r>. SCHERHERHORN lit 3. Vague and inexplicit.] The act is so vague that while the legisla- ture doubtless intended to give a single right of action and single damages to one person, a right of action is given, or may arise, to a husband or wife and each of their chudreu, be they ever so many. Id. 4. What recoverable under.] Where the husband of the plaintiff was a cripple and could earn but little for the support of his family, consisting of the plaintiff and four children, and he received a quarterly pension of fifty- four dollars, and on the day he received it got intoxicated, in part at the defendants' house, and thereby lost or had stolen fifty dollars, held, that under the statute, the plaintiff, as wife, was only entitled to recover her proportionate share, or one-fifth thereof, and that it was error on the part of the Circuit judge to refuse BO to charge. Id. 5. Exemplary damages.] The verdict of the jury was for $175. Held, that it was not a case for exemplary damages ; that although the jury, in this class of cases, have the right to give exemplary damages, yet they should only be given where there are circumstances of abuse or aggravation proved on the part of the vendor of the liquor, which were wanting hi this case. Id. 6. - Chap. 646 of 1 873 action under constitutional as to owner of prem- ises 2 Rev. Stat. (Qth ed.). 928, 84.] R. was the owner and P. the keeper of a place where intoxicating liquors were sold without a license. The son of the plaintiff, on a Sunday, took plaintiff's horse, saying he was going to ee a friend about four miles distant, but instead went directly to the place HUN You VIII. 83 658 INDEX. CIVIL DAMAGE ACT Continued. r A ^f P., and became intoxicated there, and, when in such a state, drove the horee so violently that he died. This action was brought, under chapter 646 of the Laws of 1878, to recover the value of the horse. Held, that the action could be maintained against R., the landlord, jointly with F., the temint. That the plaintiff's allowing his son to take his horse to drive to a neigh- bor's, knowing the son to be of intemperate habits, was not such contributory negligence as to defeat his right of action. BERTHOLF v. O'REILLY 16 7. Contributory negligence.] That the question of contributory negli- gence was not applicable to the case. Id. 8. Intoxication occurring while violating Sunday law, no defense.] That the sending of the horse on Sunday did not deprive the plaintiff of the right to sue for his property unlawfully destroyed. Id. 9. Chap. 646 of 1878 when cause of action exists under.] It is not essential to the existence of a cause of action, under chapter 646 of 1878, against the vendor of liquors, that an action should also be maintain- able against the intoxicated person; it is sufficient if the wife has been injured in her means of support through the intoxication of the hus- band. QUAIN v. RUSSELL. 81d CLAIM When only paid in part If evidence of debt, i. e., promissory note, be surrendered and canceled no right of action exists thereafter for amount unpaid. See KENT v. REYNOLDS 560 Against town right to sue Town auditors Board of Supervisors Commissioner of highways. See SHERMAN v. TOWN OP HAMBURG 648 CODE Section 86 Substantial inclosure Usually cultivated and improved what constitutes. See POPE v. HANKER 266 Section \\3-action to recover town moneys must be brought by super- visor. See TOWN OF CHAUTAUQUA . QIFFORD 152 Section 119 construction of , as to right of stockholder to bring action against trustees and company. See YOUNG v. DRAKE 61 Section 120 lessee and surely can be sued jointly under. See DECKER v. GAYLORD 110 Section 122 Interpleader supplemental complaint. See WILSON v. LAWRENCE 598 Section 144, subdivision 6 cause of action under means any cause of action, See MACKEY v. AUER 180 Sections 274, 287 provide the same remedy by judgment and execution against a married woman, as the law affords against other persons, with the sin- gle qualification, that the execution can be levied and collected only out of her separate property. See ANDREWS v. MONTLAWS. 66 Sections 287 and 274 provide the same remedy by judgment and execution against a married woman, as the law affords against other persons, with the sin- gle qualification that the execution can be levied and collected only out of her separate property. Bee ANDREWS v. MONTLAWS 66 Section 304 Costs when tide to real property is involved certificate ef Bounty judge that the title to land came in question on the trial, is conclusive on the taxing officer. See LILLIB v. O'CoNNKB 88C INDEX 659 CODE Continued. , AaR flection 341 Sale in foreclosure may be adjourned after stay of proceed- ings on appeal until it can be determined whether or not the sureties will justify. See WARD v. JAMES 528 Sections 352, 355.] On appeal from a Justice's Court, before the act of 1863 (chap. 392), security was only required when a stay of execution was desired; since that act, where, by the terms of section 352, the appellant is entitled to a new trial, security is required to perfect such appeal and give jurisdiction thereon to the Count}' Court. KUNTZ v. LIGHT 14 Section 391 Examination of party before trial notice to attorney.'} Where a party, required to attend before a judge or referee to be examined as a witness, in pursuance of section 391 of the Code, has appeared in the action by an attorney, notice of the examination should be served jpon the attorney as well as upon the party. PLUMMER v. BELDEN 465 Section 399 party to transaction cannot testify as to intention with which an act was done, as against legal representatives of other party. See TOOLEY v. BACON 176 Section 399 next of kin incompetent under though called to testify against his interest. See LE CLARE v. STEWART 127 Section 432 Quo warranto attorney-general cannot be compelled to bring action of. See PEOPLE EX REL. DEMAREST . FAIRCHILD 834 Section 449 Conflicting claims to real property Action to determine Costs in, on dismissal of complaint. See RUGEN . COLLINS 384 COMMISSIONERS OF EXCISE Quo warranto several persons, claim- ing to constitute a board, united as relators. See PEOPLE EX REL. BABCOCK v. MURRAY 577 COMMON CARRIER Parol contract when not merged in bill of lading. See HILL v. SYRACUSE, B. AND N. Y. R. R. Co 296 COMPLAINT Cause of action.] 1. Where a complaint alleged that defendants received from the plaintiff his promissory note for $584, indorsed by one Sanborn, upon the agreement that they would return the same before maturity; the maturity of the note; a failure to return the same and a sale thereof by defendants before maturity, held, that it stated facts sufficient to constitute a cause of action. LOOMIS . MOWRY 311 2. Presumption that the face of a note is it* value.] The presumption is, that the value of a promissory note is the face thereof. Id. The striking out of irrelevant matter in discretionary. See TOWN OP ESSEX v. N. Y. AND CANADA R. R Co 861 CONCEALMENT Of bankrupt condition fraudulent, when although no representation is made. See ROEBLING v. DUNCAN 503 CONCUBINAGE Change of, into matrimony evidence of.] 1. A cohabita- tion, illicit in its origin, is presumed to continue to be of that character unless the contrary be proved, and cannot be transformed into matrimony by evidence Avhich falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of actual marriage by mutual consent. FOSTER v. HAWLEY 68 2. Presumption.] The presumption of a contract of marriage cannot be raised when the direct consequence of it would be to involve both parties in the crime of bigamy. Id. CONDITION SUBSEQUENT Who not a stranger toOutitb reservation valid. /SPo*rt>. WKIL.. 418 6(30 INDEX. CONDONATION Purchase of stock.] A purchase of stock of a corpora- tion, after an alleged fraud is committed, does not condone the fraud, and the purchaser acquires all the rights of the person of whom he purchased. YOUNG v. DRAKE 61 Qf adultery by contract between husband and wife. See VAN ORDER v. VAN ORDER, 815 CONFLICTING CLAIMS To real property.] Where, in an action brought in pursuance of 449 of the Code, to determine conflicting claims to real property, the plaintiff's complaint is dismissed, the defendant is entitled to costs, as a matter of right, and the court cannot prevent his recovering the same. RUGEN . COLLINS 384 CONFLICTING DECISIONS Of Court, and Commission of Appeals duty of trial court.] Upon an appeal from a judgment entered upon an order dismissing the complaint in this action, the Commission of Appeals granted a new trial, holding that upon the facts proved the action could be maintained; after the argument, and before the decision of this case, the Court of Appeals, in a case then before it, decided that such an action could not be maintained. Upon this case coming on for a new trial, held, that, as the Court of Appeals had decided that such an action could not be maintained, such decision became the law of the State, and as such binding upon this court and the par- ties to this action, and that a judgment entered upon an order dismissing the complaint herein was proper, and should be affirmed. (DAVIS, P. J., dissent- ing.) MECHANICS AND TRADERS' BANK v. DAKIN 431 CONSANGUINITY Degree of, necessary to create presumption that services rendered by one party for another, are gratuitous. See GALLAGHER v. VOUGHT 87 CONSENT Of owner under mechanics' lien law chapter 489 of 1873. See CRAIG V. SWTNERTON 144 Qf owner under civil damage act will not be presumed. See MEAD v. STRATTON 148 CONSTITUTION Article 7, 13 requiring tax and object to be stated relates solely to State finances, and does not govern assessments for local improve- ments. See GUEST v. CITY OF BROOKLYN 97 CONSTRUCTION Ofwitt providing for equal division among next of kin, as in case of intestacy as to rights of widow and child. See MURDOCH v. WARD 9 CONTRACT Of sale when title passes Delivery Acts to designate arti- des to ascertain their value distinction.'] Defendant agreed to purchase of the plaintiff all the lumber he should deliver, prior to the spring or rafting freshet, at a place on the Delaware river to be provided by the defendant, who also agreed to furnish a man to receive and cull the same, and to pay therefor eleven dollars per thousand for all good lumber, and five dollars and fifty cents for the culled ; the amount of lumber to be counted while on the bank or estimated when in a raft. In pursuance of this contract plain- tiff delivered lumber at the place to a man employed by the defendant to receive and cull it; before the lumber had been counted or estimated a por- tion of it was carried away by a freshet. Held, that the title to the lumber passed to the defendant upon its delivery at the designated place, and that he was liable for the price thereof. If the act remaining to be done is one of specification the title does not pass; if only to ascertain the total value at designated rates, the title does pass. BURROWS v. WHITAKER ... 260 Grant of lot on street fee to center, passes, when. See MOTT v. MOTT 474 Payment of installments under in action of ejectment brought for non- payment burden of proof as to payments. See EVERETT v. LOCKWOOD . 85f INDEX. 661 CONTRACT Continued. PAW Between husband and wife validity of condonation of adultery. See VAN ORDER v. VAN ORDER 3H Of married woman benefit of separate estate presumption of law. See NASH v. MITCHELL 471 (Corporation dividend payable at future time who entitled to. See HILL v. NEWICHAWANICK Co 468 To extend mortgage made between holder and grantee covenanting to amtme made without consent of grantor (mortgagor) discharges mortgagor. See CALVO . DA VIES 222 Municipal corporation injunction restraining city from confirming an assessment no defense against contractor entitled to his pay On confirmation, unless diligence is shown to remove it. See BOWERY NAT. BANK v. MAYOR. 224 Signature on margin disputed effect of liability thereunder to be submitted on proofs to the jury. See HAUCK v. CRAIGHEAD 287 As to party wall covenant by grantee to assume agreement as to rimilar in principle to assumption of mortgage. See STEWART v. ALDRICH 241 Refusal to perform creates present breach of. See WILLS v. SIMMONDS 189 Of judgment creditor, as to judgment, if undisclosed, is void as against theriff's certificate of sale on the judgment. See FROST v. YONKERS SAVINGS BANK '_6 Mortgage After payment cannot be made to continue as a valid secu- rity trust in relation to. See HUBBELL v. BLAKESLEE 603 In consideration of marriage partial perfovmance Statute of frauds chap. 375o/1849, 3. See BROWN v. CONGER 625 Agreement simply to share profits does not prevent the parties thereto becoming partners inter sese. See MUNRO v. WHITMAN 563 CONTRIBUTORY NEGLIGENCE Civil damage act.] The plaintiff's allowing his son to take his horse to drive to a neighbor's, knowing the son to be of intemperate habits, is not such contributory negligence as to defeat his right of action for damages (uuder chap. 64G of the Laws of 1873) for injuries to the horse caused by his son going to a tavern, instead of the neighbor's, and becoming intoxicated. BERTIIOLP v. O'REILLY 16 CONVICTION Of gambler under indictment when not to be set aside. See PICKETT v. PEOPLE 88 CORPORATION Sale of the entire property of one corporation, for stock of another.] 1. A corporation, organized under the laws of the State of New York, has no power to transfer all its property and thus terminate its existence, and take in payment stock in a foreign corporation carrying on the same busi- ness. TAYLOB v. EARLE 2. Acfaof majority of stockholders, do not bind minority.] Underthelaws of this State, the majority of the stockholders of a corporation cannot bind the non-consentiiig minority to a sale of its entire property, made for the purpose and merely as a form of turning a New York company into a Vermont one, o as to escape the scrutiny into its affairs permitted to a stockholder by the New York laws. Id. 8. Rights of stockholders.} A stockholder, under the New York law, becomes such under the security thereof; and when this is taken from him has the right to have the property of his corporation applied to the payment of ita debts, and the surplus, if any, "/' vidud among the stockholders. Id. 662 INDEX. CORPORATION Continued, 4. Poteer to adjust controversies between members Improper conduct appeal to court to determine right to membership, is not Expulsion of member. \ Where the charter of a corporation declared its purpose, among other things, to be " to adjust controversies between its members and to establish just and equitable principles in the cotton trade," and gave it power to make all proper and needful by-laws, not contrary to the Constitution and laws of the State of New York or of the United States; and " to admit new members and expel any member in such manner as may be provided by the by-laws; " and the by-laws provided for expulsion for improper conduct, but did not state what should be considered as such : Hdd, that there being in the charter or by-laws of the corporation, DO express or implied authority to determine who was the owner of a right to a membership in dispute, a member was not guilty of improper conduct warranting his expulsion, for resorting to the courts to prevent the corpora- tion from disposing of such a right claimed by him. That in refusing to submit to a report against his title, a member was not acting in antagonism to the corporate power of "adjusting controversies between its members" or of "establishing just and equitable principles in the cotton trade." That his right to appeal to another tribunal, if to be foreclosed, should be so by explicit contract or agreement (not shown in this case), not by mere con- struction of language employed in a by-law, or by implication from something contained in it; for forfeitures depend upon clear and explicit language, and are even then looked upon with disfavor, and the presumption should be against the power to expel, except for the causes recognized in the adjudged cases. PEOPLE EX REL. ELLIOTT v. N. Y. COTTON EXCHANGE 2H 5. Dissolution of Disagreement of trustees Sale of assets chapter 442 of 1876.] Under the provisions of chapter 442 of 1876, authorizing the dissolution of a corporation in case the trustees are unable to agree as to the management thereof, the court may, in proper cases, direct the assets remaining after the payment of the expenses of the receivership and of the debts and liabilities of the corporation, to be sold and the proceeds divided among the stockholders. MATTER OP WOVEN TAPE SKIRT Co 608 Action by stockholders against trustees and company wJien maintainable Code, 119 evidence that corporation will not prosecute. See YOUNG v. DRAKE 61 COSTS On foreclosure first payment out of proceed* of sale, in case of defi- ciency.'] 1. Where a judgment of foreclosure against a grantor of a mortgage assumed by his grantee has been paid by grantor although the grantee was not notified of the foreclosure suit the grantor is entitled to recover of his grantee the amount of the judgment paid by him, and the costs and expenses of the foreclosure should be deducted from the amount realized upon the sale of the property. COMBTOCK v. DROHAN 878 '2. Conflicting claims to real property Code, 449.] Where, in an action brought in pursuance of section 449 of the Code, to determine conflicting claims to real property, the plaintiff's complaint is dismissed, the defendant is entitled to costs, as a matter of right, and the court cannot prevent his recovering the same. RTTGEN . COLLINS 884 3. Judgment reversed on appeal, " costs to defendant to abide event " only affects costs of appeal.] Upon appeal from a judgment recovered by the plaintiff a new trial was granted, " with costs to the defendant to abide the event. " Plaintiff having recovered a judgment upon the new trial, taxed his costs for both trials. Held, that he was entitled so to do ; that the ordei of the General Term only deprived him of the costs of the appeal. HOWELL T. VAN SICLKN 534 4. Security for resident aliens.] The statute requiring non-resident* to give security for costs in actions brought by them, does not require such security to be given by aliens residing in this State, unless such residence is shown to be merely temporary. NORTON . MACKIE 520 Right to, of attorney in the city of New York, for the coUtctw* ofj+r*mal taxes. See GALE 0. MAYOR 870 INDEX. 663 COSTS Continued. PA0m Taxation of dispute as to whether title to real property was involved oa-tijieate of county judge conclusive upon the taxing officer, to show that the title to land came in question on the trial. See LILLIS v. O'CoNNER 280 Payment of imposed on attorney for insei-tiott of irrelevant and scandal- ous matter. See McVBT v. CANTRELL and TADDIKKN v. CANTRKLL. 583 COUNTER-CLAIM To freight detention.] 1. A counter-claim to a claim for freight under a charter party, can be sustained for a loss occasioned by the excessive drainage of hogsheads of sugar, caused by the detention of the vessel after a full cargo has been obtained, when such detention arises from -he illegal acts of the master. Also for moneys compulsorily paid by the agent of the charterer, to release their property seized, because of the unlawful act of the master. EL WELL c. SKIDDY 78 2. Practice.] A party, except in cases commenced in a Justice's Court, having a demand against another, can maintain an action therefor, although at the time an action is pending against him by the same party, wherein he could have set up such demand as a counter-claim. INSLEE v. HAMPTON . . . 330 COUNTY COURT Power to order tax to be refunded 3, chap. 647 of 1866 5, chap. 855 of 1869 chap. 695 of 1871.] 1. Where lands used for the charitable purposes of an association are exempted by statute from taxa- tion, and the assessors of the town in which they lie illegally and improp- erly assess them, the County Court, on application of the party aggrieved, has power, under section 5, chapter 855, Laws of 1869, as amended by chapter 695 of the Laws of 1871, to order the taxes (when paid) to be refunded. MATTER OP N. Y. CATHOLIC PROTECTORY 91 3. Assessors acts of, renewable by County Court.} Where the assessors aave power to act, the County Court cannot interfere with the exercise of the power, but where they have no power to act. the assessment is illegal and improper, and the County Court can order the tax paid on such illegal assessment to be refunded. /'/. Has no power, on motion, to set aside transcript of and vacate judgment of Justice's Court the remedy of the defendant is by appeal. See DOUGLASS v. REILLY 86 Appeal to, when security onjurisdictional. See KUNTZ v. LICHT 14 Duty of to pass upon objections as to regularity, etc., taken in Justice's Court. See MAXON v. REID 618 COUNTY JUDGE Writ of error to Court of General Sessions tested and nigned by a nullity. See HINMAN v. PEOPLE 647 COURT OF APPEALS Conflicting decisions of, and Commission of Appeals duty of trial court. See MECHANICS AND TRADERS' BANK v. DAKIN 481 COVENANT Of seizin and warranty breach of. See DUSENBURY v. CALLAOHAN 54* COVERTURE Married woman assumption of mortgage by. ] A. executed a mortgage on certain premises to B. , and afterwards sold and conveyed them to C., and by various mesne conveyances they came to T., a married woman. In none of the conveyances except the one to T., was there any covenant by the grantee to pay said mortgage. Held, that T. was liable on hei covenant. Further, that her coverture was no defense to the action, as the liability was contracted upon the purchase of real estate, and her cov- enant was a contract to pay a portion of the purchase money, and was, .herefore, for the benefit of her separate estate. VROOHAN t>. TURNER 78 664 INDEX. MM CREDITORS Notice to, to preterit claims when sufficient % R. S., 88, See PRENTICE t>. WHITNEY 80C CRIMINAL LAW Indictment for marrying a married person suffi- ciency of allegations an to prior marriage. See SAUSER v. PEOPLE 303 - Gammon gambler indictment, sufficiency of averment in. Bee PiCKETT t>. PEOPLE 83 Forgery name of fictitious person Evidence of payment immaterial Evidence of prior arrest of prisoner Impeaching character of witness objec- tion may be taken by counsel. See BROWN v. PEOPLE 562 Writ of error what errors will be considered on.] Upon the trial of the plaintiff in error for rape the court refused to charge that he must have " accomplished his purpose in spite of the utmost reluctance and resistance on her part." The prisoner was convicted of an assault with intent to commit rape. Upon a writ of error to review this conviction, held, that as the refusal to charge, even if it were error, did not in any way affect the crime of which he was convicted, but only that of which he was acquitted, it furnished no ground to reverse the judgment. MTER v. PEOPLE 538 CRIMINAL PROCEEDINGS Fees in. See PEOPLE EX REL. VAN TASSEL v. SUPERVISORS 275 CROSS-EXAMINATION A question to test the degree of confidence a wit- ness has in the accuracy of his memory, is proper on. See PARMELEE v. PEOPLE 623 CULTIVATION And improvement what is, under sub. 2, 85, of the Code. See POPE v. HANMER 265 CTTRTESY Tenancy by the subject to debts of wife.} 1. Where a wife, who has acquired title to real estate since the acts of 1848, dies intestate, her husband is entitled to an estate, as tenant by the curtesy, in the lands of which she dies seized, subject to the payment of her debts. ARROWSMTTH v. ARROWSMITH 606 2. Surrogate, sale of lands} The surrogate has power to direct the sale of lands in payment of the debts of. the deceased; and the husband will acquire the same interest in the surplus remaining, after payment of the said debts, as he had in the land itself. (Id.) 3. Power of to distribute surplus.} Although the surrogate has power under the Revised Statutes (3 R. S. [6th ed.], 116, and chap. 150 of 1850), to order the investment of such surplus, on the ground that the husband is entitled to an estate for life therein, he has no power to direct that such prop- erty be applied in payment of the debts of the husband. He can pass upon the claims of creditors of the intestate, but not upon those of creditors of the husband. (Id ) DAMAGES Excessive verdict of jury when not set aside.} Upon a former trial plaintiff recovered a verdict for $5,000, which was set aside by the General Term, on the ground that the damages awarded were excessive. Upon the second trial a verdict was recovered of $4,000. Held, that this second verdict, rendered upon substantially the same facts as were presented to the first jury, must be accepted as final and conclusive. PECK v. N. Y. CEN. AND HUD. R. R R Co 288 Amount of, to be determined by the court witness should not be asked to ttatett. See FLEMING v. D. AND H. CANAL Co 856 Meaxure of against a city for unauthorized acts of its officer* in remov- ing buildings, which the owner neglected to do, on opening a street. See PETEBS v. MAYOR 40? INDEX. 665 DAMAGES Continued. rAM . Caused by injunction what allowable as Bad management of receiver Allowance to counsel fee Injury to business. See HOTCHKISS v. PLATT 46 Under civil damage act chapter 646 of 1873 what recoverable under txemplary damages. See FRANKLIN v. SCHERMERHORN 112 Measure of Bona fide purchaser, of negotiable paper invalid in Jiands of payee recovery by, restricted to amount paid. See TODD v. SHELBOURNE 510 Measure of, in action on promissory notes, obtained by fraudulent repre- sentations where notes are not transferred before maturity. See THATER v. MANLY 550 When recoverable for the diversion of surface water on to the lands of an adjacent owner. See BASTABLE v. CITY OF SYRACUSE 587 DEATH Revoke* agency so that an obligation created after deatii of princi- pal, cannot be enforced against his representatives. See HELMER v. ST. JOHN 166 Of one joint debtor, during pendency of action revival of against hi* representatives. See MASTEN v. BLACKWBLL 818 DEBTOR. Discharge of, from imprisonment 2 B. S., chapter 5, title 1, article 6.] 1. Under the provisions of the act providing for the discharge of imprisoned debtors, it is sufficient to prevent the discharge of a debtor if it be shown that he has been guilty of the acts which he is required to negative by the form of oath prescribed by section 5 of said act. MATTER OP BRADY 487 2. "Just and fair" ' meaning of.} It sufficiently appears that the proceedings of the debtor have not been " just and fair " within the meaning ?f section 8, if it be shown that he has disposed of, or made over any part of his property with intent to injure or defraud any of his creditors, although such acts were committed before the commencement of the action on which he is imprisoned, provided they are shown to be so far connected with the action, as to be the grounds upon which the order for his imprisonment was based. Id. 3. What must be shown to prevent discharge.] It is not necessary that it ehoujd be shown that the petitioner was, at the time of the application for a discharge, concealing or attempting to conceal property, or had then in his possession or under his control any property or rights which he then secreted, or had secreted, in contemplation of such proceedings. Id. DECISION Of "highest tribunal" acts done under Protection against penalty or forfeiture therefor. See CHENANGO BRIDGE Co. v. PAIGE 292 Of Court and Commission of Appeals when conflicting, duty of trial court. See MECHANICS AND TRADERS' BANK v. DAKIN 481 DEED Covenant in, to assume mortgage, enures to benefit of mortgagee. See CAMPBELL v. SMITH 6 Distinction between the effect of tuch covenant, when made by grantee and iwrtgagee. See CAMPBELL v. SMITH 6 DEFAULT Judgment by irregular, if judgment taken is greater than that ttked for in the complaint. See ANDREWS v. MONILAWH 64 HUN VOL. VIII. 84 566 INDEX. MM. DEFINITION " Substantial inclosure" what it, undo* >ub. 1, 85 of the Code. See POPB c. HANKER ........................... .............. 265 - " Just and fair " meaning of, in 2 R. 3., chap. 5, ti' T ' , art. 6. See MATTER OP BRADY ............................... . ....... 437 - " Difference and costs and expenses on resale " Subsequr ' taxes included fe See Hi in . . LAW .................................. ........ ..... 251 - "Cultivation and improvement " what is, under sub. 2, P* of the Code. See POPE c. HAXMER ............................... .......... 265 - ' ' Costs to defendants to abide event " on reversal of judgmf * ' on appeal only affects costs of appeal. See HOWELL v. VAN SICLEN .................................... 524 DEGRADING QUESTION Objection to may be taken by cour *l, when.] Objection to question tending to degrade, may be taken by com rel when witness is a party. BROWN v. PEOPLE .................................. 562 DELIVERY Of good* several bills of lading the holder of whicJ- VU enti- tled to. See MERCHANTS' BANK v. UNION R. R. AND TRANS. Co ............ 249 - Of personal property distinction between acts to be done, to articles and those to ascertain their value as affecting the question of delivery. See BURROWS v. WHITAKER ................................. . 260 - Liability on indorsement of note may be limited by the terms of fat delivery, when. See LATTIKER v. HILL ........................................... ' 71 DEMURRAGE When party not entitled to Counter-claim ] A master of a vessel chartered her for three consecutive voyages to Cuba and return to New York, the first to start from a port in Canada, the outward voyages to be with sugar-box snooks, the return ones with sugar and molasses. The charter party specified a certain rate of freight and also of demurrage and bound the cargo to the performance of the charter by tho, charterer. The vessel was detained in Cuba by the custom authorities on accrunt of the illegal act of the master. A portion of the cargo was also seized on account thereof and its release could only be obtained by the payment of $14,559.38 by the agent of the charterer. Held, that the master was not entitled to demurrage for delay occasioned by the seizure or detention of the vessel for his own unlawful act. Held, also, that a counter-claim to a claim for freight thereunder, could be sustained for loss occasioned by the excessive drainage of the hogsheads of sugar caused by the detention of the vessel after a full cargo h*d been obtained, such detention arising from the illegal act of the master. Held, also, that a counter-claim could be sustained for moneys compulsorily paid by the agent of the charterer, to release their property seized because of the unlawful act of the master. ELWELL v. SKIDDT ........ . ........... 7* DEMURRER Misjoinder of causes of action what is not. ] 1. In an action to foreclose a mechanic's lien, although other persons than the one against whom the claim was filed as owner of the premises are made parties defend- ant, on the ground that conveyances by and to them, of the premises, were fraudulently made to defeat plaintiff's claim, and the complaint asks to have uch conveyances declared void, yet there is owly one cause of action set frth in the complaint and the same is not demurrable. TISDALE v. MOORE, 18 2. - Prayer for relief.] Even if the prayer for judgment, upon the facts alleged, be for too much, it is not ground for demurrer. Id. - When the facts alleged justify any relief though not the relief asked for will not be sustained. See MACKET v. ATTER ......................................... 180 - To complaint on note signed J. 8. 3fcO., agent See MOORE v. MCCLUBE. . . ,.55*? INDEX. (567 MM DEPOSIT Village of chap. 330 0/1873 (charter) not affected by chap. 444 ef 1874 License law. See VILLAGE OF DEPOSIT D. DEVEREUX 317 DISCHARGE Of debtor from imprisonment ''just and fair" mean- ing of wliat must be shown to prevent discharge. See MATTER OF BRADY . 437 DISCONTINUANCE Of action, by overseer of the poor where prosecu- tion is brought in his name by third person under chap. 820 of 1878 for violation of excise law not allowed. See RECORD . MKSSEV ;y." 283 Of action, after order thenm,, appointing physicians to examine as to pregnancy of widow and charging their fees on the estate, does not affect claim of physicians on such estate for such fees. See ROLLWAGBN v. POWELL 210 DISCRETIONARY The striking out of irrelevant matter in complaint. See TOWN OF ESSEX v. N. Y. AND CANADA R. R. Co 361 DISEASE Contracted by servant through negligence of master liability of master therefor. See SPAN v. ELY 255 DISSOLUTION* Of corporation disagreement of trustees sale of assets chap. 442 of 1876. See MATTER OF WOVEN TAPE SKIRT Co 508 DISTRICT ATTORNEY Assistant, of New York State officer salary rf.] 1. The assistant district attorney of the county of New York is an officer of the State government, and not of that county, and the board of apportion- ment created by chapter 583 of 1871, " to regulate all salaries of officers and employes of the city and county governments " had no power to reduce his saUuy. FELLOWS v. MAYOR 484 2. Tjocul act subject expressed.'] Where a provision establishing the salary of the assistant district attorney of the county of New York was con- tained in an act entitled " An act to make further provision for the govern- ment of the county of New York," held, that the provision was local as it affected the salary of the officers in a particular county only, yet that the title of the act sufficiently expressed the subject. Id. DIVIDEND Payable at future time who entitled to. ] The board of directors of a corporation passed, on January 25, 1873, the following resolu- tion: "At a meeting of the board of directors, held this day, voted to pay a dividend of four per cent this day, and another of like amount at option of agent from earnings of last year." The plaintiff was on that day the owner of certain shares of the company's stock, then deposited by him as collateral security with a bank, by which they were, in July, sold at private sale. On the seventh of November, the company's agent declared the second dividend of four per cent, in pursuance of the resolution. Held, that the plaintiff was the owner of the stock at the lime the dividend was declared, uiid that he, and not the purchaser, was enti- tled thereto. HILL . NEWICHAWANICK Co 459 EASEMENT Grant of use of water amount not defined easement limited to amount firxl taken.] 1. A grant was made to use certain water and lay down pipes therefor, but the size of the pipes and the amount of wafer to be taken were not defined. Pipes were laid, and the water that they could supply used for a number of years. HeM., that this limited the extent of the grant, and the grantee was liable for damages occasioned by the diver- sion of a greater quantity of water than originally used, caused by taking up such pipes and replacing them by larger ones. ONTHANK v. LAKE SHORE AND M. 8. R. R. Co 181 2. The grant being of an easement, the occupation under it must be regarded as the exercise of the right granted, applying the same principles to easements of water as of land. Id. 668 INDEX. BASEMENT Continued. r AM 8. Union of semient and dominant estates.} Where a right of way over a private street or lane exists in favor of the several lots fronting thereon, and all such lots are subsequently acquired by one person, the easement is thereby extinguished. MOTT t>. MOTT 474 4 Grant of lot on street fee to center, passes when.] Where the owner of land conveyed lots fronting on a private lane, the deed describing them as running "to the side of a lane twenty feet wide, thence along the same," and then providing "and also the privilege of using from time to time aiid at all times hereafter * * * the said lane," the grantee to pay his proportional part of the expenses of keeping the lane in repair, held, that there was no intention in the grantor to reserve to himself the lane, and that one acquiring title to all the lots fronting thereon became the owner thereof in fee, and waa entitled to devote the same to any use he might think proper. Id. EJECTMENT Brought for non-payment of installments under contract burden of proof as to payments. See EVERETT v. LOCKWOOD 866 EMINENT DOMAIN Railroad highway. ] No title acquired by a rail- road to the land, by reason of legislative permission to lay down their tracks on a highway. MATTER OF PROSPECT PARK AND C. I. R. R. Co 30 EMPLOYMENT Of brakeman by railroad company scope of forcibly ejecting passenger. See PECK r.. N. Y. CEN. AND HUD. R. R. R. Co 286 ERIE RAILWAY COMPANY No obligation to keep open its ticket offices Vare payment of, at office or to conductor different rates. ] 1. Under sec- tion 14 of chapter 224 of 1832, authorizing the Erie Railway Company " to fix, regulate and receive the" tolls and charges by them to be received for the transportation of property or persons," it may establish two rates of fare, discriminating between the cases where the ticket is purchased of a conduc- tor upon a train, and where it is purchased at a ticket office. BORDEAUX v. ERIE RAILWAY Co 579 2. The company is not bound to keep its ticket offices open at or for any particular time, and the fact that a passenger is unable to procure a ticket in consequence of the office being shut, will not entitle him to be carried to his place of destination upon payment of the amount for which he could have procured a ticket at the office had it been open. Id. ESTATES Sentient and dominant union of Grant of lot on street fee to center when passes. See MOTT v. MOTT 474 EVIDENCE Concubinage.] 1. Evidence that concubinage of the parties has been changed into matrimony, may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former rela- tion continued, and satisfactorily prove that it had been changed into that of actual marriage by mutual consent. FOSTER v. HAWLET 68 2. That corporation will not prosecute.] Where the accused persons are a majority of the trustees of a corporation, it is sufficient evidence that the corporation will not prosecute an action against them, and that an application to the trustees to direct a suit to be brought against themselves, would be useless. YOUNG T. DRAKE 61 3. Of payment of forged instrument on indictment for forgery.] Upon the trial of an indictment for uttering a forged promissory note, evi- dence tending to show that the note had been paid is immaterial, and is prop- erly excluded. BROWN v. PEOPLE 562 4. Gross-examination.] A question to test the degree of confidence a witness has in the accuracy of his memory is proper. PARHELBE t>. PEOPLE 623 5. Prior arrest.] The mere fact of a prisoner's prior arrest has no ten- dency to impeach his character in any particular. BROWN v. PEOPLE 561 INDEX 669 EVIDENCE Conttnutd. PAM> - Damages amount of, to be determined by the court vtitness should not be anted to state it. See FLEMING v. D. AND H. CANAL Co ............................ 858 - Presumption that the face of a promissory note is its value. See LOOMIS v. J>!OWRY - Express company proof of signature to receipt of. See ARMSTRONG v. FARGO ....................................... 175 - Party to transaction cannot testify as to intention with which an act wu done as against legal representatives of other party Code, 399. See TOOLEY v. BACON ............................ \ ........... 178 - Receipt when evidence of promise to pay another, the money received. See HOWE MACHINE Co. v. FAGAN .............................. 174 - Under chapter^ 646, Laws of 1873, to recover damages against owner of premises where intoxicating liquors are sold permission or knowledge of the owner must be proved, not presumed or inferred. See MEAD v. STRATTON .......................................... 148 - Defense not pleaded to controvert matter set up in answer admissible. See COUGHLIN v. N. Y. CEN. AND HUD. R. R. R. Co ............... 136 - Presumption that services rendered between relatives are gratuitous. See GALLAGHER v. VOUGHT ...................................... 87 Refusal to restate, when requested by jury, error Pleadings beyond por- tion admitted by the answer not evidence to go to the jury. See DREW v. ANDREWS ............................... ' ........... 23 - Inquisition prima facie evidence of unsound mind burden of proof. See HICKS v. MARSHALL ......................................... 827 Parol contract when not merged in subsequent written contract Bill of lading. See HILL v. SYRACUSE, B. AND N. Y. R. R. Co ................... 296 - Presumption of fact, to sustain referee's report. See BANCKER v. MAYOR ......................................... 409 - Burden of proof, as to payments in an action of ejectment, brought for non-payment of ir^allments under contract. See EVERETT v. LOCKWOOD ...................................... 366 - Judgment roll against grantor in foreclosure of mortgage assumed by grantee evidence against grantee, although not notified of action. See COMSTOCK v. DROHAN. ...................................... 878 - Credit due to uncontradicted statements by a witness how affected by his interest in suit. See SHERIDAN v. MAYOR ----- .................................... 424 - Action for salary Receipt ignorance of its contents acts of receiptor inconsistent with knowledge thereof not admissible as. See DREW v. MAYOR .......................................... 443 - Obstruction, of streets license from corporation, wJien presumed injury to traveler liability of party causing bound by judgment againut corporation. See VILLAGE OF SENECA FALLS v. ZALINBKI ...................... 571 Railroad company Negligence fire occasioned by sparks burden of proof- See McCAiG v. ERIE RAILWAY Co ............................... 599 Judgment in ejectment conclusive at to title to land in action in Justice 1 1 Court. See HALEY v. WHEELER ......................................... 569 EXAMINATION Of party before trial Attorney entitled to notice Oodt, $ 391.1 Where a pnrty, required to attend before a judge or referee to be examined as a witness, in pursuance of section 391 of the Code, lias appeared in the action by an attorney, notice of the examination should be served upon die attorney as well us upon the party. PI.UMMER v. BELDEN .............. 4W 670 INDEX. EXCEPTIONS When may be ordered to be heard in the first instance at the Genera i Term See BROWN t>. CONOEK 625 EXCESSIVE DAMAGES Verdict of jury when not set tiside, because of. See PECK e. N. Y. CEN. AND HUD. R. R. R. Co 286 EXCISE Lice ii*es may be granted for less than a year 1870, chap. 175, 8. See PEOPLE t>. GAINET 90 EXCISE LAW Prosecution by third person for violation of Discontinu- ance of action by overseer of the poor not allowed Costs chap. 820 of 1878. See RECORD r. MESSENGER. 283 EXECUTION Bankruptcy.] 1. It is no excuse to sheriff for not proceeding on an execution in his hands, after levy, that proceedings in bankruptcy were afterwards instituted against the judgment debtor, pending which the sheriff was enjoined from further proceedings on the execution. ANSONIA BRASS AND COPPER Co. v. BABBITT 157 2. Exemption law Laws of 1859, c/tap. 134 duty of debtor, to dawn exemption within reasonable time.] In the latter part of February, 1874, the defendant, a deputy sheriff, seized a wagon belonging to the plaintiff under an execution issued against him, and advertised the same to be sold on March tenth, but subsequently, at the request of the plaintiff, the sale was postponed. At the time of the levy the plaintiff owned three or four other wagons, all of which were subsequently, and prior to April fourteenth, disposed of by him. On the latter day the defendant took possession of the wagon and sold it, against the objections of the plaintiff, who claimed that it was exempt under chapter 134 of 1859. In an action to recover for its conversion, held, that the plaintiff was bound to make his election within a reasonable time, and to notify the officer that lie claimed the property as exempt, and that the question whether or not he had made his election within a reasonable time should, under the circumstances of this case, have been submitted to the jury. BROOKS v. HATHAWAY 290 Levy under Receiptor has a lien for his fees. See ALIGER v. KEELER 125 Failure of sheriff to return action upon sheriff's bond when permitted 8 R. 8., % 3, title 5, chap. 8 construction of permissive not mandatory. See PEOPLE T. CONNER 533 EXECUTORS Notice to creditors, to present claims notice, when sufficient 2 R. S., 88, i 34, 38.] The defendants, executors, in pursuance of 2 Revised Statutes, 88, section 34, published a notice to creditors to present their claims, the notice being in the usual form except that the word "requested" was used instead of "required." Held, that there was no substantial difference between the words "request" and "require" as the latter was used in the statute, and that the notice was sufficient. PRENTICE v. WHITNEY 300 EXEMPLARY DAMAGES Recoverable under chap 646, Laws of 1878 for injuries canted by sale of intoxicating liquors. See FRANKLIN v. SCHERMERHORN 112 EXEMPTION LAW Chop. 184, Laws of 1859 duty of debtor, to claim exemption within reasonable time. See BROOKS . HATHAWAY 200 EXPRESS COMPANY Receipt of signature to proof of. See ARMSTRONG t>. FARGO 175 EXPULSION Of member of a corporation improper conduct appeal to oourt to determine right to membership is not. See PEOPLE KX REL. ELLIOTT . N. Y. COTTON EXCHANGE 816 INDEX. 671 EXTENSION Qf time to pay a mortgage agreement for, made tetween holder and grantee covenanting to assume, made without consent of grantor (mort- gagor), discharges mortgagor. See CALVO v. DAVIES 388 FACT Resumption of, to sustain referee's report.] When the uncon- tradicted evidence establishes the existence of a fact, essential to the plain- tiff's right to recover, it will be presumed, in support of a judgment in his favor, that such fact was found by the referee, though not so stated in his report. BANCKER v. MAYOR 409 FALSE IMPRISONMENT Action for, against judge when not main- tainiwle although sentence is unauthorized. See LANGE v. BENEDICT 362 FARE Erie Railway Co. no obligation to keep open its ticket offices Pay~ ment of fare at office or to conductor different rates of. See BORDEAUX v. ERIE RAILWAY Co 579 FEE To center of street when it passes with grant of lot on street. See MOTT v. MOTT 474 FEES Of officers in criminal proceedings under chap. 495 of 1847. See PEOPLE EX BEL. VAN TASSEL v. SUPERVISORS 275 Of physician, for examination as to pregnancy of widow, under order f Supreme Court, and charged thereby on estate, not affected by discontinuance of action surrogate's order. See ROLLWAGEN v. POWELL 210 1. Of auctioneers on foreclosure sale. ] Not allowable to an auctioneer, for services rendered upon the adjournment of a sale by a referee in fore- closure. See WARD v. JAMES 526 2. Referees on foreclosure sale."] A referee is only entitled to receive the same fees for selling real estate, as by law is allowed to a sheriff. See WARD v. JAMES 52<5 FIRST DEPARTMENT Practice in Motion to confirm referee's report t made under interlocutory decree Special Terms at which heard. See EMPIRE B. AND M. L. ABS'N v. STEVENS 516 FORECLOSURE Stay of proceedings adjournment. ] 1. Where, after a referee has been appointed to sell real estate, in pursuance of a judgment of foreclosure, and a notice of sale has been duly published, the defendant serves an undertaldng to stay proceedings upon appeal, in pursuance of section 341 of the Code, the plaintiff is not required to abandon the pro- ceedings instituted by him, but may adjourn the sale until it can be deter- mined whether or not the sureties will justify. WARD o. JAMES 524 2. Auctioneer's fees.] No fees can be allowed to an auctioneer for ser- vices rendered upon the adjournment of a sale by a referee. Id. 3. Referee's feet.] A referee is only entitled to receive the same fees for selling real estate, as by law is allowed to a sheriff. Id. Collection of a note of a married woman, the payment of which u charged on her separate estate by foreclosure instead of by suit at law not allowable. See ANDREWS v. MONILAWS. 66 Qf mortgage defense, usury and fraud action equitable trial of intuet by the court discretionary. See KNICKERBOCKER LIFE INS. Co. t>. NELSON SI Judgment roll in against grantor of mortgage assumed by grantee right of grantor evidence against grantee, although not notified of action. See COMBTOCK v. DKOH AN 871 672 INDEX. FORECLOSURE Continued. r A.. Resale of property, " difference and eottt and expense* of retale " ntbte- yuent toot* inducted in. See RUHE v. LAW 25 Inquest Rule 86 doet not apply to equity cotes. See DEVLIN . SHANNON 581 Fraudulent mortgage Action to recover damage* against fraudulent pur- chaser at salt. See DUSENBURY v. CALLAGHAN 641 Of mechanic*? lien failure to serve bill of particulars in waived by tertice of answer. See NORCOTT v. FIRST BAPTIST CHURCH OF ROME 689 FOREIGN JUDGMENT Injunction It is within the power of the Supreme Court of this State to enjoin a party from enforcing the collection of a judgment recovered by him in another State. See BARRY . BRUNE 395 FOREIGN LAW Laws of another State promissory note patent right tale of, consideration for statute of Pennsylvania knowledge of existence of a question of fact, not of lair. See PALMER v. MINAR 843 FORT EDWARD Village of Town bonds Chap. 953 of 1867 chap. 317 of 1868.] 1. Chapter 953 of 1867, as amended by chapter 817 of 1868, authorizing the village of Fort Edward to issue bonds, requires that notice of the special election, provided for in said acts, should be published for at least two weeks previous to the time appointed for such election. CULVER t. VILLAGE OF FORT EDWARD 340 2. Majority of taxable inhabitants tote of what constitutes.] No bonds can be issued under the provisions of said acts, unless a majority of all the taxable inhabitants of the village shall vote so to do. The consent of a majority of all those who attend the meeting is not sufficient. Id. FORGERY Prisoner's belief in his authority to sign paper."] 1. Where a per- son is indicted for affixing the name of another person to a written instrument without authority, he is entitled to an acquittal if it appear that he had fair grounds for believing that he had such authority, even though in fact he had not. PARMELEE v. PEOPLE 623 2. Cross-examination.'] Upon the trial of the plaintiff in error for forging his father's name to a note, the father testified that some time before the son had applied for leave to use his name ; that he had refused to allow him to do so ; that he might have given him encouragement, but did not intend to author- ize him to use his name; that he could not state the conversation. Upon his cross-examination the counsel for the prisoner asked him if he was willing to swear that, from what he did say, the prisoner had no right to infer that he intended to give him authority to use his name, which question was excluded. Held, that this was error; that the question was proper to test the degree of confidence the witness had in the accuracy of his memory. Id. 3. Forged note name of fictitious person.] It is not necessary, in order to constitute the crime of forgery, that the name alleged to be forged should be that of any person in existence ; it may be the name of a purely fictitious person. BROWN . PEOPLE 562 4. Evidence of payment of, immaterial.] Upon the trial of an indict- ment for uttering a forged promissory note, evidence tending to show that tLe note had been paid is immaterial, and is properly excluded. Id. 5. Evidence of prior arrest of prisoner. ] Upoo an indictment for forgery the prisoner, on his examination in his own behalf, was asked, with a view of anpeaching his character, "How many times have you been arrested ?'* Held, that the question was improper, as the mere fact of his arrest had no tendency to impeach his character in any particular. Id. INDEX. 673 FORGERY Continued. PAM 6- Objection to question tending to degrade may be taken by counsel when witness is a party.] JSembk, that although the right of a witness to object to answering any question, on the ground that it will tend to disgrace and degrade him, is a personal privilege which must be claimed by the witness, yet that the rule is different in the case of a party examined as a witness, and that in this case the objection may be taken by his counsel, whose duty it is to protect his rights and interpose objections in his interests growing out of any incident in the litigation. Id. FRAUD Concealment of bankrupt condition.] 1. Although a banker or trader in embarrassed circumstances, who is struggling in good faith to retrieve his fortunes, is not compelled to disclose the fact of his embarrassment to per- sons dealing with him ; yet, if he is at the time hopelessly insolvent, he is guilty of a fraud, if, by virtue of his supposed solvency and well established credit, he contracts obligations which he cannot reasonably expect to pay. ROEBLING v. DUNCAN 50 2. Although no representation is made.] Persons dealing with a banker in good faith, and in reliance upon his apparent solvency, will be protected against the consequences of the concealment by the banker of his real con- dition, if he is at the lime not merely insolvent but bankrupt, and where such concealment involves a degree of bad faith from which the law will imply fraud, although no actual representation has been made. Id. Issue of trial of, by the court in action for foreclosure of a mechanic's litn, discretionary. See TISDALE v. MOORE 10 Foreclosure of mortgage action to recover damages against fraudu- lent purchaser at sale Release by plaintiff of all interest in property to person acquiring title from such purchaser no defense to action Payment when third person relieved from liability by Covenants of seizin and warranty breach of. See DUSENBURY . CALLAGHAN 541 FRAUDULENT REPRESENT ATIONS Promissory notes obtained by Measure of damages where notes are not transferred befort maturity.] 1 . Upon the trial of an action brought by the plaintiff to recover damages for fraud- ulent representations, by means of which he was induced to deliver to the defendant his three promissory notes, each for $500, with interest, it appeared that all the notes were still in the possession of the defendant, and that one of them was then overdue. The court charged that the plaintiff was entitled to recover the face of the notes, with interest. Upon appeal from a judg- ment in favor of the plaintiff, held, that this was error ; that the verdict of the jury established the invalidity of the notes in the hands of the defendant; and that as to the note then overdue, the plaintiff was only entitled to nominal damages; that he was entitled to recover the face of the other two, with interest, as they might be transferred before maturity to bona fide purchasers in good faith. Held, further, that if the defendant had canceled or sur- rendered the other notes at the trial, plaintiff could only have recovered nominal damages for them also. THATER v. MANLEY 680 2. Made to the agent of one firm when acted upon by another firm, by whom such agent is aftei-ward employed-liability for.] The firm of Lynde Bros., in order to induce a firm in Buffalo to sell them goods, made certain false and fraudulent representations as to their financial condition to Kobinson, the salesman of the Buffalo firm. Subsequently the plaintiffs succeeded to the business of said Buffalo firm, and retained Robinson in their employ- ment. Shortly after Lynde Bros, applied for other goods, which were sold to them by Robinson, he relying upon the representation previously made by them. In an action by the plaintiffs to recover the goods so sold, on the ground that they were procured through fraudulent representations, held, that they were not entitled to recover ; that, in order to maintain such action, the representations must be made to the vendors, or to some person acting in their behalf, while in this case the representations were made to the agent of another firm, and before that of the plaintiffs came into existence. HILL v. CARLEY 686 HTTN VOL. VIII. 85 674 INDEX. FREEHOLDER Tit If to real . DROHAN ....................................... 873 GRANTOR AND GRANTEE Mortgage covenant in deed, assuming enures to benefit of mortgagee Distinction between such covenant, when made by grantee and mortgagee. See CAMPBELL t>. SMITH ......................................... 6 - Party wall covenant by grantee to assume agreement as to similar in principle to assumption of mortgage. See STEWART t>. AUJRICH . . .............. 841 INDEX. 675 P1.BB GRANTEE Assuming mortgage may be released by his grantor Assent of mortgagee, not necessary.] 1. John Hoffman executed a mortgage to the plaintiff; afterward he conveyed the premises covered by the mortgage to the defendant Casbacker, subject to such mortgage, which Casbacker assumed to pay. Casbacker entered under his deed and made payments on the mort- gage, to the plaintiff. Afterward, Hoffman requested Casbacker, in writing, to convey the premises to his brother Lewis, and in consideration thereof executed a release, under seal, to Casbacker, of all obligations assumed by Casbacker under the deed from him. In an action by the plaintiff against Casbacker. to recover the amount due on the mortgage", field, that the release by Hoffman to Casbacker operated as a discharge from all obligations assumed under the deed to him. STEPHENS c. CASBACKER lie 2. Assumption of mortgage by liable to pay, although her grantor was not Coverture no defense.] A. executed a mortgage on certain premises to B., and afterward sold and conveyed them to C., and by various mesne con- veyances they came to T., a married woman. In none of the conveyances except the one to T. was there any covenant by the grantee to pay said mort- gage. Held, that T. was liable on her covenant. Further, that her coverture was no defense to the action, as the liability was contracted upon the pur- chase of real estate in her own name, and which thus became her separate estate, and her covenant was a contract to pay a portion of the purchase money, and was, therefore, for the benefit of her separate estate. VROOMAN v. TURNER 78 Assumption of mortgage by Right of grantor Judgment rott in fore- closure against grantor evidence against grantee, although not notified of action. See COMSTOCK v. DROHAN 378 GUARDIAN Special, to seU infant's estate owner of tax title to same can- not dispose of his incumbrance upon the estate, although it was acquired previous to such appointment. See SPELMAN v. TERRY 205 GUARDIAN AD LITEM Effect on judgment against infant, of his failure to plead infancy in action against. See PHILLIPS v. DUSRNBERRY 848 GUARANTEE Continuing.] Where a lease was guaranteed, and had a provision in these words: " This contract is to be renewed for three consec- utive years, if it is fulfilled to the satisfaction of both parties," held, that the guarantee was continuing and the guarantor liable for the second year's rent in default. DECKEK e. QAYLORD : 110 HIGHEST TRIBUNAL Decision of acts done under protection against penalty or forfeiture therefor] The Binghamton Bridge Company having, in 1855, erected a bridge over the Chenango river, at Binghamton, within eighty rods of plaintiff's bridge, the plaintiff in 1856 commenced an action to enjoin it from collecting toll thereon, on the ground that, by its charter, no bridge could be erected vvithin two miles of the one previously erected by it. The plaintiff was defeated at the Circuit, and the judgment affirmed at the General Term and by the Court of Appeals, but subsequently reversed by the Supreme Court of the United States. In 1865 the Binghamton Bridge Company's bridge being carried away by^ a freshet, struck and carried away plaintiff's bridge. Plaintiff brought this action to recover the tolls unlawfully diverted from it by the other bridge, and damages arising from its bridge being carried away. Defendant maintained that our courts having sustained the validity of the statute incor- porating the Binghamton Bridge Company, defendants' testator was pro- tected by 2 Revised Statutes, 602, although the decision of our courts had since been overruled. Held, that this was not so for the reason : first, that the bridge was not built after any decision of our courts had given a construction to the act ; and, second, that the recovery of damages by reason of the loss of toll was not a penalty or forfeiture. Held, further, that the principle laid down in Harris v. Jex (55 N. Y., 421). that a person had a right to rely upon the decision of the highest tribunal 676 INDEX. HIGHEST TRIBUNAL Continued. of the land upon any question, and was not bound to foresee that it would be reversed, was not applicable, as the decision of the Court of Appeals was not the decision of the highest tribunal of the land, upon the matter involved. CHENANGO BRIDGE Co. v. PAIGE 299 HIGHWAY Land taken for garden meaning of 1 R. &, 574, 57. See PEOPLE EX REL. Sr ANTON v. HOKTON 357 Opening of w?u> is a freeholder for purposes of. See PEOPLE EX REL. SHAW . SCOTT 566 See PUBLIC HIGHWAY. HORSE RAILROAD Biding on platform of street car proximate cause of death when not negligence. See GINNA v. SECOND AVE. R. R. Co 494 HUDSON Common council of power to audit claims Chap. 495 of 1847 | 97 chap. 468, of 1872. See PEOPLE EX REL. VAN TASSEL v. SUPERVISORS 275 HUSBAND AND WIFE Contracts between validity of.] 1. A wife having commenced an action against her husband for divorce on account of his adultery, entered into an agreement in writing with him, whereby, in con- sideration of a sum of money to be paid to her by him, she agreed to discon- tinue the action, to condone the adultery, to give up to him the custody of their child and relinquish her right of dower in his estate. In an action brought by her upon such agreement, held that a wife has no power to enter into such a contract with her husband, and that the agreement to pay the money was void. VAN ORDER v. VAN ORDER 315 2. Condonation of adultery.] A promise by a husband to pay money to his wife, in consideration of her condoning an act of adultery committed by him, is in violation of the rules of law and public policy and will not be enforced by the courts. Id. IGNORANCE Of contents of receipt by receiptor acts of receiptor incon- sistent with knowledge thereof evidence of inadmissible. See DREW v. MAYOR 443 IMPEACHING Character of witness evidence of prior arrest inadmis- sible. See BROWN v. PEOPLE 562 IMPRISONMENT Discharge from meaning of ' 'just and fair " what must be shown to prevent discharge 2 R. 8., chap. 5, title 1, article 6. See MATTER OP BRADY 437 Action for, against judge when not maintainable, although sentence is unauthorized. See LANGE . BENEDICT 862 INDICTMENT For marrying a married person sufficiency of allegations as to prior marriage 2 R. 8. (Edm. ed.), 710, 11.1 The plaintiff in error, an unmarried woman, was convicted under 2 Revised Statutes (Edm. ed.), 710, section 11, of unlawfully marrying one Simons, he being then a married man. The indictment alleged the marriage, and further, " she, * * * at the time of marrying * * * the said Conrad L. Simons, well knowing that the said- Conrad L. Simons was then and there the lawful husband of Anna M. Simons, and had previously been lawfully married to the said Anna M. Simons." It contained no other allegation as to the marriage of Conrad L. and Anna M. Simons. Held, that the indictment was fatally defective, in that it did not sufficiently allege the marriage of the said Conrad L. and Anna M. Simons. SAUBER v. PEOPLE 802 Of gambler sufficiency of averments in. See PICKETT v. PEOPLE 83 For rape conviction of assault with intent to commit error in charge tf judge as to what necessary to justify conviction of rape held no ground for reversal <>/ judgment. See MYER v. PEOPLE.. 688 INDEX. 677 INDORSEMENT Of note liability on, may be limited by the terms of tit delivery when. See LATTIMER t>. HILL 171 INFANT Judgment against effect of Guardian ad litem neglect of, to plead infancy.'} 1. A judgment rendered against an infant who is duly sum- moned and has a guardian ad litein appointed, who accepts the trust, will bind and conclude him as if he were an adult. PHILLIPS v. DUSENBERRY. . 348 2. ; Six months after coming of age to show cause.] The practice of giving minors six months after coming of age to show cause against decrees rend- ered against them during their minority, applied only to actions in equity, and not to actions at law for the recovery of money due on contract, and this rule is now abrogated by statute, providing for the appointment of guardians ad litem. Id. Special guardian owner of tax title to estate cannot sell his interest therein after his appointment as special guardian. See SPELMAN v. TERRY 206 INHERITANCE Subject to power of sale, title in heirs at law until sale. See PEOPLE EX REL. SHAW . SCOTT 568 INJUNCTION damages caused by what allowable as Bad management of receiver.] 1. In proceedings to ascertain the damage resulting from the grant- ing of an injunction, damages directly caused by the act of divesting the enjoined party of his property and putting it in the hands of a receiver are allowable, but uot such as flow from the bad management of the receiver afterwards. HOTCHKISS v. PLATT 46 2. Counsel fe*.] Counsel fees on the trial of the action in which the injunction was granted are not allowable as damages, without evidence that the expense of the trial was increased by the injunction. /-/. 8. Receiver's compensation.] An allowance made by the court to the receiver in managing the property is not allowable as damages, when the sum BO paid is no greater than the defendant, who did not manage the property before the receivership, but employed another person to do it, would have paid for similar services if no receiver had been appointed. ItL 4. Injury to business.] Any loss of property or diminution of profits occurring inconsequence of the change in the custody and control of defend- ant's goods or stoppage of defendant's business is allowable. Td. 5. Restraining city from confirming an assessment no defense against contractor entitled to his pay on the confirmation, unless diligence it, shown to remove it.] Where a contract with the city of New York for paving a street provided that the city would pay in cash, on the confirmation of the assess merit to be laid for said work, the whole of the money accruing to the other party under the agreement ; and no assessment had ever been laid for the work, the city and the board of assessors having been enjoined by the court in an action by the property owners from confirming the assess- ment : Held, in an action to recover the balance due on the contract, that when the defendants were stopped by process from obtaining the funds, all they could demand was a reasonable time to remove the impediment, and the fail- xire to do any thing to remove the injunction rendered them liable for the plaintiff's claim BOWERY NAT. BANK v. MAYOR 224 6. That it was error for the judge to leave it to the jury to find the fact whether or not the assessment had not been confirmed because of any collusion, fraud, negligence or other improper act on the part of the defend- ants, for the facts being undisputed, the question of reasonable diligence was one for the court, ana especially where ite subject-matter, namely, a law- suit, was one of which the court could take judicial cognizance ; and the plaintiff was entitled to its request that the jury be instructed to render a verdict in its favor. Id. 7. In bankruptcy effect of.] An injunction issued in proceedings in 678 INDEX INJUNCTION Continued. PAa bankruptcy, does not apply to property levied ov V- 1 sNi.'f r-bvre the levy has been made before the commencement of proceedings in bankruptcy against the judgment debtor. The possession and legal titie . ERIE RAILWAY Co ................................. 599 ** JUST AND PAIR" Meaning of, under 8 of 2 R. 8., chap. 5, tiOe 1, mart. 6 act providing for the discharge of imprisoned debtors. See MATTER OF BRADY ......................................... 487 JUSTICE'S COURT Brooklyn % 16, chap. 102, Laws 0/1850 County Oourt no power, on motion, to vacate judgment of Justice's Court.} 1. A sum- mons having been issued in a civil action by a justice of the peace of the town of New Lots. Kings county, and personally served on the defendant in the city of Brooklyn, in said county, of which he was a resident, and on INDEX. 681 JUSTICE'S COURT Continued. PAM default judgment entered, a transcript thereof filed, and the judgment docketed against him in the clerk's office of said county, and execution issued thereon; and the County Court having, on an order to show cause, directed that the Baid transciipt be set aside and the clerk of Kings county cancel the judgment of record: Held, that section 16 of chapter 102, Laws of 1850, which declare?: "No justice of the peace, other than the police justice and the justices elected hi the city of Biooklyn, shall have, or exercise any civil or criminal jurisdic- tion in said city, was intended to give to the police justices and justices elected in Brooklyn exclusive jurisdiction to hold courts in that city, bul not to take away the general jurisdiction of the justices of the peace of the county, to try transitory actions within their jurisdiction in their own towns. That the justice in this case exercised no jurisdiction in the city of Brooklyn. He simply issued a summons in the town of New Lots, out of the city, and upon proper return of personal service proceeded with the case in his own town, and entered judgment, the constable's return giving him jurisdiction of the per- son of the defendant. Held, further, that the County Court had no power, on motion, to set aside the transcript and vacate the judgment; that the remedy of the defendant was by appeal. DOUGLASS . REILLY 81 2. Objections as to jurisdiction, regu larity, etc., taken in duty of County Court to pass upon.] Upon an appeal to the County Court from a judgment rendered in a Justice's Court, it is the duty of the former, when a new trial is to be had before it, to pass upon all questions raised in the court below as to the jurisdiction of the justice, the regularity of the process, its service and return, and whether all the proper parties are before the court; and in case it refuse so to do and compels the appellant to proceed with a new trial, upon which a judgment is rendered against him, the General Term will, upon an appeal from such judgment, reverse the same and direct a new trial, even though such objections were frivolous and devoid of merit. MAXON v. REED 818 Appeal from, security on when jurisdictional. See KUNTZ v. LIGHT 14 Ti'lf. t<> land when not in question effect of judgment in ejectment. See HALEY . WHEELER 56* LANDLORD Liability of, under chapter 646, Laws of 1878 for intoxicat- ing liquors furnished by bartender, without his knowledge and against his orders. See SMITH v. REYNOLDS 128 Of premises, where intoxicating liquors are sold, liable for injuries caused by their sale. See BERTHOLF . O'REILLY 14 OivU damage act Recovery of damages against owner permission or knowledge of owner must be proved, not presumed or inferred. See MEAD v. STRATTON 14t See CIVIL DAMAGE ACT. LANDLORD AND TENANT Improper construction of building, causing mow to fatt from roof.] Where one passing upon the sidewalk is struck and injured by snow which has slid from a roof (so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk), the owner of the building is liable for the injuries thereby occasioned, even though the building be at the time in the occupation of a tenant, who in bound to make HI needful repairs. WALSH v. MEAD 887 Lessee and surety can be sued jointly under Code, % 120 Continuing ruarantee. See DECKER v. QAYLORD 110 LAWS OP ANOTHER STATE Promissory note when valid notwith itanding it violates the law knowledge of existence of law a question of fatt, ot of law. See PALMER v. MINAR HPNVOI-. VIII. 86 682 INDEX. LEASE Possession under defense to action upon Quantum meruil.] 1. In May, 1870, the defendant entered into an agreement with one D., the owner of a coal yard, by which he was to deliver coal at the yard for D. to sell, to remain defendant's property until sold and paid for, and to place a man in the office, as his agent, to hold the coal and receive the proceeds of the sale thereof, which proceeds, after certain deductions for expenses, as pro- vided for in the agreement, were to be divided between def eudunt and D. In pursuance of this agreement defendant had, October 14th, 1870, deposited a large quantity of coal in the yard. On that day plaintiffs purchased the yard upon the foreclosure of a mortgage, and leased it to the defendant until April 1st, 1871. Subsequently defendant sold the coal in the yard and assigned his lease to G., who thereafter demanded possession of the yard and office irom D., who refused to give up the possession of the office and portions of the yard, claiming that he was entitled to occupy the yard and sell the coal under the agreement with defendant. G. before April first sold all the coal sold to him by defendant, and stored other coal in, and sold the same from the yard. In this action to recover rent due under the lease, defendant defended on the ground that the plaintiffs had failed to deliver to him possession of the demised premises. Held, 1. That if the claim of D., that he was entitled to possession under his agreement with defendant, was rightful, then defendant was kept out of possession through his own fault, and so could not complain thereof. 2. That if such claim was unfounded, then D. was a wrong-doer and defendant should have removed him. 3. That as defendant's assignee occupied a portion of the premises for the entire term, he was, in any event, liable for the value of the portion so occu- pied. McKiNNEY v. HOLT 3df 2. Lessee and surety can be sued jointly, under Code, 120.] A lease was signed by F. S. G. , and then by C. G. Opposite to the name of the latter (whose name did not appear in the body of the lease) was written, ' ' security for Frederick S. Gaylord. " Held, that both could be sued in one action under section 120 of the Code. DECKER v. GAYLORD 110 3. Continuing guarantee.] The lease was for one year, but had a pro- vision in it in these words: "This contract is to be renewed for three consecutive years, if it is fulfilled to the satisfaction of both parties." Held, that the guarantee was continuing and the guarantor liable tor the second year's rent in default. Id. LEGISLATIVE ACTS Special and general construction of Chap. 444 of 1874 mllageof Deposit chap. 330 of 1873.] That provision of the charter of the village of Deposit which provides for the payment of all sums received for licenses into the treasury of the village is not repealed by chapter 444 of 1874, creating boards of excise for the several counties of the State. VILLAGE OF DEPOSIT v. DEVEREUX 817 LEGISLATURE Power of, to cure irregularity in assessment taxing property to extent of assessment. See GUEST v. CITY OF BROOKLYN 97 LEVY Reeeiptor right of has a lien for his fees. See ALIGER . KEELER 126 Sheriff liable for release of, on property of judgment debtor on his being \djndged a bankrupt. See ANSONIA BRASS AND COPPER Co. v. BABBITT. 157 LICENSES May be granted for less than a year Chap. 175, 1870, 8.] The provision that all the licenses granted by the commissioners of excise shall expire at the end of one year from the tune they shall be granted, is a limitation of the power of the commissioners, not a constituent of the license itself, and within the limitation aforesaid the commissioners have full power to determine the period of a license. Therefore, when a person was indicted for selling liquor after May 1 , 1875, and before December 7, 1875, without & license, held, he was not protected by a license granted December 7, 1874, uad which, by its terms, expired May 1, 1875. PEOPLE v. GALNEY M INDEX. 683 LIEN Subrogation cf subsequent incumbrancer Judgmet* - sheriff" cer- iifcate of sale on valid against prior undisclosed agreement of judgment creditor. ] 1. The defendant was the holder of a first mortgage on premises on which there was a prior judgment. The plaintiff was the assignee of a mortgage on the same premises, between which aud ihe defendant's mortgage there existed two other mortgages. Prior to the assignment of the mortgage to the plaintiff, the holder of the aforesaid judgment agreed with plaintiff's assignor to postpone the lien of such judgment to that of the mortgage assigned plaintiff. In January, 1875, the premises were sold under the iudgnient, and purchased by the defendant, the holder of the first mortgage, the sale being made without notice of the agreement to make it subordinate to plaintiff's mortgage. In February, 1875, the defendant foreclosed its mortgage, made the plain- tiff a party defendant as subsequent incumbrancer, who appeared by attorney, bat put in no answer. Judgment of foreclosure and sale was entered March 22, 1875. May 21, 1875, plaintiff tendered the defendant the amount due on the fore- closure judgment, and demanded an nssignment of the mortgage and judgment. Defendant refused to receive the money unless the plaintiff, would pay the additional sum for which the premises were sold to it, on the execution issued under the prior judgment. Held, that the tender did not discharge the lien; that the plaintiff had no standing as to the land which entitled him to an assignment of the defendant's mortgage. Held, also, that the holder of the judgment having the title and the right to enforce it, making no reservation and giving no notice indicating that it was not what it purported to be, viz., the first lien on the property sold, the pur- chaser at the sheriff's sale took the title, without reference to the agreement made by such judgment creditor postponing its lien. FROST v. YONKERS SAVINGS BANK 26 2. Beceiptor to constable right of to, for his fees.} A. constable levied on certain property under a judgment in favor of the defendant, against the plaintiff, and committed the property to the defendant as a receiptor. Held, that the latter acquired a valid lien upon the property, for his just and law- ful charges as such; and that payment of the judgment to the sheriff, upon the judgment of affirmance, rendered upon appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees. ALIGER v. KEELER 126 A claim for *er vices rendered a trust estate, when not a lien thereupon. See STANTON v. KINO 4 Of bailee, not lost, because of not being expressed in receipt. See HAZARD . MANNING 613 UFE BENEFICIARY When may be compelled to disclose personalty held by him. See WILLIAMS . PEABODY 971 XJQUOR T.AW Civil damage act when cause of action exists under. See QUAIN *. RUSSELL 819 See CIVIL DAMAGK ACT. L.TTN ATIC Promissory note made by action upon burden of proof in. See HICKS v. MARSHALL WT MAJORITY When acts of, of stockholders, do not bind minority Sale qf entire corporate property, for stock in another corporation illegal. See TAYLOR t>. EARLE t Of ' taxablf, inhabitant* vote of what constitutes. 'See CULVER v. VILLAOK OF FORT EDWARD 840 MLAUCIOUS PROSECUTION Entry of nolle prosequi vith defendants atttnt, a sufficient end of the prosecution i< support an action. See MOULTON v . BKKCHKR IOC 684 INDEX. HAHRIAGJS Contract in consideration of when void under statute of /VWMfc. See BROWN . CONGER 9K MARRIED WOMAN Collection of debt, charged, on her separate e*tate thould be by common-law action not by action for foreclosure Judgment by default.] 1. The defendant, a married woman, made her promissory note, in and by which she in express terms charged her separate estate. An action was brought (by service of summons for relief) to enforce the lien upon and payment of the amount thereof out of the defendant's property. Defend- ant did not appear, and on default plaintiff obtained an order of reference to compute the amount due, and upon the report of the referee judgment was entered, adjudging and directing that the defendant's property so charged and described in the complaint be sold by a referee therein named, and that the defendant be barred of and from all equity of redemption in said premises, etc. The said premises were sold by such referee in pursuance of Baid judgment. Held, that sections 274 and 287 of the Code provide the same remedy by judg- ment and execution against a married woman, as the law affords against other persons, with the single qualification that the execution can be levied and col- lected only of her separate property. That the statute having given a legal remedy which was adequate, there was no occasion for administering equitable relief. That although formerly such a contract was treated as an appointment of, or charge upon the separate estate of a married woman, and the only remedy for its enforcement was by bill in equity, yet that mode of proceeding had been entirely superseded by section 7 of chapter 172 of the Laws of 1862, which enacted that " a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a mar- ried woman, the same may be enforced by execution against her sole and separate estate in tJie same manner as if she were sole." That such enactments were in pari materia with the special statutes for the protection of married women, and should be so construed as to insure to them the same protection against the sacrifice of their property which the law gives to & feme sole, viz., levy, advertisement, right of redemption, etc. That the more summary and expensive remedy pursued in this case, of foreclosing a lien or charge, and thereby cutting off the right of redemption, was in contravention thereof. ANDREWS . MONILAWS 6* 2. Relief greater Uian tiiat asked for in complaint irregular. ~\ A judgment, taken by default, giving greater relief than that demanded in the complaint, should be set aside. Id. 3. Note by, charging separate estate, though for debt of husband, valid blank place of payment, can be filled in by holder Practice immaterial aver- ments.] A married woman executed .and delivered the following note: "$60.00. SYRACUSE, N. Y., February 26, 1875. Six months after date I promise to pay to the order of Waggoner & Eager sixty dollars at , value received, with use. And for value received, I hereby agree that the above sum shall be paid out of my separate estate, and make the same a charge thereon. (Signed) HARRIET E. MILLINGTON." Held, that the note was not avoided by filling in after the word " at," in & blank left for the place of payment, " State Bank of Syracuse, N. Y.," the leav- ing of such blank giving implied authority to the lawful holder to fill it up by designating a place of payment ; that the body of the note contained a sufficient admission that the defendant was possessed of a separate estate. That an allegation in the answer that the note was given for a prior indebt- edness of her husband in his own business and for his own benefit, and that ehe was solicited to sign said note for her husband and did so without any Intention of charging ner separate estate or knowing that she had done so, following a general denial of each and every allegation in the complaint "except as hereinafter stated and admitted/' had the sole legal effect to admit the making of the note, and the qualification of the admission was mmaterial. INDEX. 685 MARRIED WOMAN- Continued. FAam That such allegation constituted no defense to the note. WAGGONER v. MILLLNGTON .. 143 4. Chapter 90 of 1860 when separate estate of married woman chargeable under debt contracted by her as his agent.] Under section 1 of chapter 90 of 1860, providing that the property of any married woman shall not be liable for the debts of her husband, " except such debts as may have been contracted for the support of herself or her children, by her as his agent," her estate is liable for the price of goods purchased by her as his agent, which were necessary for and used in the support of herself and her children. COVERT v. HUGHES t 305 5. Separate estate Contracts benefit of separate estate presumption of law.] Where a married woman, who has a separate estate and carries on business in relation thereto, keeping a bank account in her own name, draws a check upon such account payable at a future day on which she borrows money, the law presumes, in the absence of evidence to the contrary, that such money was borrowed for the benefit of her separate estate, and holds her liable therefor. NASH v. MITCHELL 471 Assumption of mortgage by coverture no defence. See VROOMAN v. TURNER 78 Husband and wife contracts between validity of condonation of adultery. See VAN ORDER v. VAN ORDER 815 Policy of insurance aligned by repayment of amount paid for assignment -* a condiiwn of restitution of such policy to her. See WILSON v. LAWRENCE 593 MASTER AND SERVANT Liability of master, for injuries io acrvcent.} The defendant, a physician, attended a woman who died of small pox, and subsequently employed the plaintiff to whitewash the house in which the death occurred. The plaintiff, who knew that the woman had died of small pox, entered and whitewashed the house, relying upon the assurances of the defendant that the house had been thoroughly disinfected, and that he would be entirely safe in so doing. Plaintiff having contracted the disease in the house, subsequently brought this action to recover the damages sus- tained thereby. Held ( l ), that the relation between the parties was that of master and servant; and (2), that the plaintiff was entitled to recover in case the jury should find, on all the facts, that the plaintiff did not act rashly and inexcusably in entering the house under the employment ; and further, that tha defendant had not conducted towards the plaintiff with due care and prudence. The liability of a master for injuries sustained by the servant in the course of his employment, considered. SPAN v. ELY 955 MATRIMONY Change of concubinage into evidence of. See POSTER v. HAWLEY 68 MECHANIC'S ~LLENChap. 489, Laws of 187$ materials furnished to vendee in possession under executory contract Consent Title of owner of fee not affected when.] Chapter 489, Laws of 1873, does not authorize the cre- ation of a lien as against the owner of the legal title to property, in regard to which there is an outstanding executory contract of sale with the vendee in, and entitled to the possession of the land, for materials and labor furnished to the vendee on a building contract made with him, or for his own benefit, unless such labor or supplies are furnished with the express consent of the owner of the fee of the land. CIIAIG v. SWINEKTON 144 2. Bill of particulars verification of.] Where, at the time of serving a notice to foreclose a mechanic's iien, a bill of particulars was served, sworn by the claimant to be "in all respects true, to the best of his knowledge and belief." Held, that the verification was sufficient. GREY v. VORHIS 61 3. Bill of particulars effect of failure to serve.] If, in an action brought to foreclose a mechanic's lien, the plaintiffs fail to serve with the notice the bill of particulars required by section 10 of chapter 403 of 1854, the remedy of 686 INDEX. MECHANIC'S LIEN Continued, VAM the defendant is to move, before answering, to set aside the proceedings, or stay them until such service be made. Such defect is waived by the service of an answer, and cannot be taken advantage of upon the trial. NORCOTT t>. FIRST BAPTIST CHURCH OF ROME. . 639 MEMBER Of corporation expulsion of. See PEOPLE EX REL. ELLIOTT t> N. Y. COTTON EXCHANGE 118 MERGER. Parol contract when, not merged in subsequent written contract. See HILL v. SYRACUSE, B. AND N. Y. R. R. Co 2W MIS JOINDER Of causes of action Mechanic's lien foreclosure of Fraudulent grantees of premises parties defendant. See TISDALE t>. MOORE 19 MISTRIAL For referee to report where evidence is conflicting, that it " leave* the mind in doubt " It in the referee's duty to pass upon the facts and find one way or the other on them. See BRADLEY v. MCLAUGHLIN 545 MORTGAGE Assumption of by grantee right of grantor Foreclosure action, at law to recover debt.] 1. The plaintiff conveyed a lot to the defendant subject to a mortgage, which the latter assumed and agreed to pay. In an action to foreclose the mortgage, to which the plaintiff, but not the defendant, was made a party, a judgment for deficiency was entered against and subse- quently paid by the plaintiff. In an action brought by him to recover the amount so paid, held, that section 153 of 2 Revised Statutes (Edm. ed.), page 199, providing that no proceedings shall be had at law for the recovery of a debt secured by a mortgage after a decree has been entered in an action to foreclose the same, unless authorized by the court, did not apply to an action upon a covenant such as formed the subject of the present action. The object of that provision was to limit a party attempting to enforce the collection of his debt by the foreclosure of a mortgage to that proceeding, unless good cause could be shown why resort should also be had to an action at law. COMSTOCK v. DROHAN 37J 2. Judgment roU in foreclosure against grantor Evidence against grantee.} Although the defendant was not a party to the foreclosure suit, the judg- ment recovered therein was competent evidence in this action to show the amount of the mortgage debt, the sale of the property, and the amount of the deficiency. Id. 3. Although not notified of action.] It was not necessary for the plain- tiff to give notice to the defendant of the pendencj' of the foreclosure suit. Where one person has become obligated to protect another against the conse- quence of his or her default in payment, a judgment regularly recovered against the party entitled to such protection is prima facie evidence of the facts established by it in his favor, in an action against the person bound to make the indemnity. Id. 4. Costs.'] In this action, ,held, that the plaintiff was entitled to recover the amount of the judgment paid by him, and that the costs and expenses of the foreclosure suit should be deducted from the amount realized upon the sale of the property. Id. 0. Covenant in deed assuming enures to benefit of mortgagee dis- tinction between the effect of such covenant when made by grantee and mort- aagee.] H. and wife executed a mortgage, which was duly assigned to C. Afterward H. and wife sold the premises to B., and executed a deed therefor without the name of any grantee, but with a blank space left for the inser- tion thereof. The deed contained full covenants of title, and a clause subse- quent to the " habendum," in the following words (alter enumerating cer- tain other mortgages): " Subject to the payment of another certain indenture of mortgage now upon the within described premises, amounting to $3,000 " (meaning the mortgage in question), " which said mortgage the said party of the second part hereby agrees to assume, pay off and discharge, the same having been allowed out of the consideration or purchase money hereinbe- fore expressed." INDEX. 687 MORTGAGE Continued. , A-B , B. was indebted to a firm of which defendant 8. was a member, and after- ward agreed with S., by parol, that he should insert the name of S. as grantee in the deed; that S. should take the title, and that the profits therefrom should be applied on account of the said indebtedness of B. to the defend- ant's firm. B. accordingly inserted the defendant's name in the deed and had the same recorded, with his knowledge and assent Afterward B. procured a purchaser for the premises, and contracted in his own name for the sale thereof, and S., in pursuance thereof and at the request of B. granted and conveyed the premises to such purchaser, in fee simple, by deed, with the usual full covenants, including covenant of seizin, subject to the said mortgage and other incumbrances; and this deed con- tained a clause similar to the other, providing for the assumption and payment of said mortgage by such purchaser. The mortgage was foreclosed, S. not betng made a party, although his grantee was; but no judgment for defi- ciency was demanded against him. C. purchased in the premises on the sale, and brought his action against S. on the covenants in the deed from EL to S., to recover the deficiency on such sale. Held, that S., as regarded H., was the absolute owner in fee of the prom- ises, and bound to pay the consideration agreed upon for the purchase; that the rights of the parties were not to be determined by the facts existing at the execution of the blank deed, but by those existing when 8. consented to take the deed with a covenant to pay the plaintiff's mortgage; that the defendant, by the deed, took the property of H. and agreed to pay its pur- chase-price to the plaintiff. CAMPBELL v. SMITH 6. Foreclosure Usury Guarantee fraud trial of issues of, by the court, discretionary.] In an action for the foreclosure of four bonds and mortgages executed by the defendant George VV. Nelson; for a sale of the mortgaged premises and judgment for deficiency against him, and for a judg- ment against the defendant Ruea Nelson for any deficiency up to $20,000, on the ground of the execution by him of an instrument, by which he cov- enanted that on a sale under foreclosure of said mortgages, the mortgaged premises should yield a sum sufficient to pay the amount decreed, with the costs and expenses of sale, or in default thereof he would, on demand, pay any deficiency up to $20,000 which might result on such sale or sales, the defendant George W. Nelson set up usury as a defense, and the defendant Ruea Nelson also plead usury, and that the aforesaid instrument executed by him was procured to be so executed by fraud. Held, that it was an equitable action purely, and it rested in the discretion of the court either to ask the aid of a jury to inform the conscience of the court, or to decide the case without such aid; that the defendant could not claim, as matter of right, to have the issues framed and tried at law. KNICKERBOCKER LIFE INS. Co. v. NELSON SI 7. After payment cannot be made to continue, as a valid tecurity trust in relation to.] No trust can be created and attached to an existing mortgage, BO as to make it a valid security for any greater amount than that specified in the body and upon the face thereof. After the execution and delivery of a mortgage, but on the same occasion, and while the parties were still together, it was agreed between the mortgugor and the mortgagee that the latter should hold the mortgage until his debt was paid, and then assign it to the plaintiff, to be held by her as security for a debt owing to her by the mortgagor. The debt of the mortgagee having been paid, the mortgage was assigned to the plaintiff, who brought this action to foreclose it. Held, that the pay- ment of the debt to the mortgagee extinguished his mortgage, and the assign- ment to the plaintiff was a nullity. HTJBBELL t>. BLAKEBLEE 808 Foreclosure resale of property " difference and costs, and expenses of resale," subsequent taxes included in. See RUHE v. LAW 261 Assumption of, by grantee grantee liable to pay, though no preceding premteeieas. See VROOMAW t>. TTTRNXR 78 688 INDEX. MORTGAGE Continued. - Ax*u>ned by grantee, may be released by grantor assent of mortgagee not See STEPHENS v. CASBACKER ..................................... 116 -- Agreement to extend, between holder and grantee covenanting to assume, made without consent of grantor (mortgagor) discharges mortgagor. See CALVO r. DAVIBS ............... ............................ 221 - Subrogation of subsequent incumbrancer. See FROST v. YONKERS SAVINGS BANK .......................... 26 MORTGAGOR AND MORTGAGEE Mortgage covenant in deed, assum- ing Distinction between such covenant when made by grantee and mortgagee. See CAMPBELL v. SMITH ........................................ i MORTGAGEE Assent of not necessary to validity of release by grantor, of grantee's assumption of mortgage. See STEPHENS v. CASBACKKR ................................... 116 MOTION County Court has no power on motion to vacate judgment of Jus- tice's Court. See DOUGLASS v. REILLY ........................................ 85 - In first department to confirm referee's report made under interlocutory decree at what Special Term to be heard. See EMPIRE B. AND M. L. Assoc. v. STEVENS ...................... 515 MTJNICIPAL CORPORATION Street opening neglect of owner to remove building unauthorized acts of officers in so doing liability of city therefor.'] 1. The city of New York having instituted proceedings to acquire title to the lands necessary for the widening of Church street, an award was made to the plaintiffs for land taken from them and for the expense of removing the buildings thereon. Subsequently, upon their failure to remove the buildings, the street commissioner, whose duty it was to take charge of the opening and altering of streets and avenues, advertised them for sale and paid over the proceeds to the defendant. In an action by the plaintiffs to recover the value of the buildings, held (1), that the materials in the buildings belonged to the plaintiffs, and that it was unlawful for the defendant to sell the same; (2), that though the street commissioner was not authorized to Bell the buildings, yet, as he acted for the defendant in good faith and in pursuance of a general authority possessed by him, it was liable therefor. PETERS v. MAYOR ................................................. 405 2. - Measure of damages.] The plaintiffs should be limited in their recovery, to the amount realized on the sale and actually paid over to the defendants, with interest, less the amount allowed to them for the removal of the buildings. Id. 8. - Construction of streets surface water collection of into one stream. ] Although no action can be maintained for the diversion from its ordinary course of the surface water arising from rains and melting snow, yet if such water be collected into a single channel and cast in a large volume upon the land of an adjacent owner, he may maintain an action to recover the dam- ages sustained thereby. In pursuance of an ordinance by the common council of the defendant, a street was constructed in the city of Syracuse, whereby the surface water from a large area, which had formerly flowed through no well defined chan- nels over the adjoining low lands, was collected into a single stream and thrown upon the land of the plaintiff. Held, that he was entitled to main- tain an action to recover the damages sustained thereby. BASTABLE v. CITY OF SYRACUSE ...................................... 68^ 4. - Street regulations Railroad 14, sub. 5 of title 3 and 19 of title 11 of chapter 461 of 1871, construed.] Power was granted to Long Island City by its charter, to regulate the use of its streets by railways ; such charter also provided that nothing therein contained should be construed as granting to said municipality power to prohibit or control, in any man- ner, the use of steam power on any railroad from any part of Long Island to the East river, and such railroad should have an unobstructed right to run to INDEX. 089 CORPORATION Continued. PA8B . the East river with their locomotives and cars, but should furnish suitable guards or signals at the street crossings for the protection of the public. Held, that the legal effect of this latter provision was to exempt the railroad of defendant, which ran from a part of Long Island through said city to the East river, from an ordinance requiring it to station a flagman at its crossings. LONG ISLAND CITY v. LONG ISLAND R. R. Co 68 Assessment New York city when vacated, under chap. 580 of 1870. See MATTER OP N. Y. PHOT. EPIS. PUBLIC SCHOOL 457 Assessment payment of , under protest Voluntary payment right to recover amount paid. See PEYSER v. MAYOR 418 Department of public charities and correction, New York can neither tut nor be sued. See N. Y. BALANCE DOCK Co. v. MAYOR 247 Officers of duties imposed on when not in the interest of, or prescribed by the charter of the municipality corporation not liable for failure or refusal of its officers to perform. See SAW MILL Co. v. CITY OF BROOKLYN 87 Municipal corporation Injunction restraining city from confirming an assessment no defense against contractor entitled to his pay on the confirma- tion, unless diligence is shown to remove it. See BOWERY NAT. BANK v. MAYOR 234 Obstruction of streets License from corporation, when presumed Injury to traveler liability of party causing bound by judgment against corporation. See VILLAGE OP SENECA FALLS v. ZALINSKI 571 MUNICIPAL OFFICERS Duties imposed on when not in the interest or prescribed by the charter of the municipality corporation not liable for failure or refusal of its officers to perform.'] A municipal corporation is not liable in damages to a private part v, for the failure or refusal of any of its officers to perform a duty, not pertaining to the interests or franchises of the corpora- tion, nor arising under the charter thereof, but imposed upon such officers by a special act of the legislature, in relation to an improvement instituted by the State for the private benefit of a locality, and not for that of the people of the city at large. Such a duty is not imposed upon the corporation, nor are such officers called upon to act in their corporate capacity. For the purposes of such an act they become the public and administrative officers or agents of the State, and they act or refuse to act for the State and the locality to be benefited, and not for the city. SAW MILL Co. v. CITY OP BROOKLYN 17 NATIONAL BANK Taxation Actual, not par value of stock, the bant of Surplus.] The actual and not the par value is the standard to be adopted by commissioner of taxation, in assessing the value of shares of the capital stock of a national bank. Such valuation is not affected by the fact that H portion of the capital of the bank is invested in United States bonds, or by the fact that the bank \ required by law to accumulate and retain a reserve. The actual value of the stock, diminished by the proportionate value of the real estate owned by the bank, furnishes the proper sum upon which to sseas the tax. PEOPLE v. COMMISSIONERS OF TAXES 588 NEGLIGENCE Of administratrix, in keeping money of the estate vthat is.] 1. An administratrix kept a large amount of money (the collec- tions from the sales of goods in a store and of notes and accounts of the intestate), in a trunk in a bedroom occupied by her crippled son, being one of the rooms occupied by her family adjoining the store. Part of such col- lections had been kept there over a year. The nearest bank was twelve miles from where she lived. The money was stolen. Held, that had the money been only a portion of the estate lately collected, and bad the rest been deposited in bank, she might have been "held authorized to keep the Hux VOL. VIII. 87 690 INDEX. NEGLIGENCE Continued. same where she did, until a proper opportunity to deposit it in the bank occurred; but as the whole, or nearly all, the fund had been allowed to remain in such an insecure place for nearly a year, when it was finally stolen, it was such a violation of the ordinary laws of prudence as consti- tuted negligence for which she was liable. CORN WELL t. DECK 123 2. Hiding on platform of street car proximate cause of death.} Where a passenger upon a street car in the city of New York, being unable to obtain a seat in the ulterior of the car, remains standing upon the plat- form thereof, he is not gnilty of such contributory negligence as prevents him from recovering damages for injuries sustained by him, in being thrown from the car in consequence of the negligence of the driver thereof. By his fall from the car the arm of the deceased was broken above the elbow, the broken fragments of the bone protruding through the skin and resulting in the development of a poisonous discharge, which, being absorbed by the blood, caused his death. Held, that the wrongful act of the defendant in occasioning the wound was the cause of his death within the meaning of the statute, and that the defendant was liable for the damages occasioned thereby. GINNA . SECOND AVENUE R. R. Co 494 8. Landlord and tenant construction of building.] Where premises are affected by a nuisance at the time of their demise, the owner is liable for SJiy injury occasioned by it to a third person, even though the negligence of the tenant contributed thereto. WALSH v. MEAD 887 Master and servant liability of former for imprudent use of servants services. See SPAN v. ELY 265 Railroad, company fire occasioned by sparks burden of proof. See McCAio v. ERIE RAILWAY Co 599 NEGOTIABLE PAPER Invalid in hands of payee bona fide purchaser Department of public charities and correction, in can neither me nor be NMd. See N. Y. BALANCE DOCK Co. v. MAYOR 847 Assessment purchase of property subsequent to confirmation of pro- turned to have been made subject to party aggrieved who is. under chop. 388 o/1858. See MATTER OF MOORE 518 NEXT OF KIN Incompetent, though called to testify against his interest, under 399 of the Code. See LE CLARE v. STEWART 127 NOLLE PROSEQUI Entry of, with defendant's assent, sufficient end of the prosecution to support an action for malicious prosecution. See MOULTOK v. BEECHER 100 5TOTE Blank place of payment, can be filled in by holder. S&e WAGGONER v. MILLINGTON .*. 1 43 Liability on, for indorsement may be limited by Hie terms of its delivery when. See LATTIMER . HILL 171 NOTICE Of examination of party, under 391 of the Code must be served on the attorney as well as the pcvrty, where the latter has appeared in the action by attorney. See PLUMMER v. BBLDEN 455 To creditors to present claims when sufficient under 27?. S., p. 88, 34, 38. See PRENTICE v. WHITNEY 900 NUISANCE Improper construction of building, causing snow to fall from roof.] 1. Where the roof of a building, in a large city, is so constructed as to render the snow falling upon it liable to be precipitated upon the side- walk, and there is no adequate guard at the edge to retain it, it is, in judg- ment of law, a nuisance. WALSH v. MEAD 387 2. Liability of owner, for injuries resulting from negligence. ] Where one passing upon the; sidewalk is struck and injured by snow which has slid from a roof, so constructed, the owner of the building is liable for the injuries thereby occasioned, even though the building be at the time in the occupation of a tenant, who is bound to make all needful repairs. Id. 8. Landlord and tenant covenant to repair.] Where premises are affected by a nuisance at the time of their demise, the owner is liable for any Injury occasioned by it to a third person, even though the negligence of the tenant contributed thereto. Id. In constructing a building, it does not create a nuisance to deposit material* therefor in the street, if they are properly guarded. See VILLAGE OF SHJXECA FALLS v. ZALIXSEI 571 OBJECTIONS To judge's charge may be first made on appeal, when. See LATTIMER v. HILL 171 OBSTRUCTION Of streets License from corporation when presumed Injury to traveler liability of party causing bound by judgment against cor- pvration. See VILLAGE OF SBNBCA FALLS v. ZALINHKI 571 OFFICE Salary action for by one vnlaifffully kept out of offlee liability of city for payment. See DOLAN v. MAYOR .... 440 OFFICEB yo appropriation to pay Hilary employment thenqftor in viola- Hon of lam action for salary not maintainable. See DUNPHY r. MAYOR 490 692 INDEX. ORDER Entry of.} If a party who is entitled to enter an order fails to do so for twenty-four hours after the decision has been made, any party interested may have it drawn up and entered. SM MATTER OF RHINEBEOK AND CONN. R. R. Co 84 OVERSEER OF THE POOR In prosecution by third person for violation of excise law under chap. 820, laws of 1873 has no poicer to consent to its discon- tinuance, without the consent of the person by whom it was commenced. See RECORD v. MESSENGER 388 OWNER Title of, when not affected under chap. 489, Laws of 1873 by reason of material* furnished to vendee in possession under executory contract. See CRAIG v. SWINBRTON 144 FAROL CONTRACT When not merged in subsequent written contract Bill of lading.] Plaintiff delivered a quantity of wool to the defendant in pursuance of, and relying upon, a parol contract that it should he shipped within two weeks; afterwards, and upon the same day, receipts were given to him by which defendant was exempted from all liability arising from delay; plaintiff did not examine the receipts, except to see that the weights were correct, until the next day, nor did he discover the condition until that time. The wool was not shipped for two months, by which time the price had declined nearly thirty cents per pound. In au action to recover the damages occasioned by the delay, held, that the parol agreement was not merged in the receipts, and that the plaintiff was entitled to recover. HILL v. SYRACUSE, B. AND N. Y. R. R. Co 296 PARTITION Of personal property Sale of vessel, owned by tenants in com- mon power of Supreme. Court to direct.} 1. Where a vessel is owned, in unequal proportions, by several persons, who cannot agree upon the sale or for the working of it, the Supreme Court of this State has jurisdiction over an action brought by one owner to procure the appointment of a receiver, the sale of the vessel, and the division of the proceeds among the owners thereof. ANDREWS v. BETTS 823 2. Jurisdiction of admiralty courts.} Semble-, that the admiralty courts do not exercise jurisdiction to order the sale of a vessel owned by tenants in common, except in those cases in which the opposing interests are equal. Id. PARTNERS Action by one against another, but not against all when maintainable.} 1. Although the partnership relation may exist between parties, the court has jurisdiction to entertain a suit at law, brought by one against only one of the several other partners for damages, where the action involves an inquiry only with respect to the damages which the plaintiff has sustained, solely because of an alleged breach of the partnership agree- ment by the defendant. WILLS v. SIMMONDS 189 2. Necessary parties.} Where the particular controversy can be com- pletely determined without prejudice to the rights of the parties not made defendants, they are not necessary parties thereto. Id. 3. Contract refusal to perform creates present breach of.] Where parties who were bound by an agreement to accept certain bills of exchange to pay for goods purchased, declare in advance that they will not do so, such declaration of their intention not to perform their contract, is a breach thereof, and upon the occurrence of the breach a cause of action exists at once against them, whether the goods were at hand and delivered or to arrive, the damages therefor depending upon the facts to be established upon the trial. Id. 4. Accounting Surviving partner Different causes of action Joinder of administrator and heirs.] In an action by the administratrix of A. against the administratrix of B. for an accounting in respect to a part- nership existing between A.. B. and C. , alleging^that after the death <' A. the partnership was continued by B. and C., as surviving partners, for a v.ort period, when B. purchased the interest of C. with partnership effects, INDEX. 693 PABTNEBS Continued,. rAM> and thereafter continued the business as sole surviving partner unti. his death; and that after the death of B., his widow and administratrix, the defendant (who had since married one Collier) carried on the same business with the partnership capital and effects, aud that no accounting of the inter- ests of A., had ever been rendered to the plaintiff, who was his widow aud administratrix; that the other defendants were the children of B. and made defendants on the ground of a partial distribution of their father's estate to them; and that some of the real estate which descended to them, as heirs of their father, was in fact purchased wilh the funds of the partnership afore- said, and so constituted a part of the assets thereof: on demurrer to the com- plaint by the defendant Collier, administratrix, interposed on the ground that the facts stated in the first cause oi' action did not constitute a cause of action against her, and that several causes of action had been improperly united in the complaint : Held, that the facts stated made out a case within the equitable jurisdic- tion of the court. That a surviving partner, though he has a legal right to the partnership effects, yet, in equity, is considered a trustee to pay the debts and dispose of the effects for the benefit of himself, and the estate of his deceased partner. That the capital of the deceased partner is to be treated as trust property; and when it has been employed in carrying on the business of the concern, so much of the subsequent profits as can be attributed to the employment of such capital must be accounted for by those who have used it; and on this principle the defendant Collier was liable, as administratrix, to account for the quai breach of trust of B., her intestate, and hence a cause of action was correctly stated against her. That there was really but one cause of action set out in the complaint, namely, the right to an accounting concerning the affairs of the partnership mentioned; and no distinct cause of action set forth against the defendants other than Collier, the administratrix; but in such an action it was proper to make all persons parties who were interested in the subject-matter of the accounting, although the interests of the several defendants did not accrue in the same right. SKIDMOBB v. COLLIER 50 PARTNERSHIP What constitute* agreement simply to share profit*.] Plaintiff and defendant entered into an agreement, whereby plaintiff was to furnish the capital to carry on the business of manufacturing and selling wooden ware, the latter to receive one-third and the former two-thirds of the profits, nothing being said in the agreement as to any possible losses. Held, that the mere fact that no provision was made in the agreement, whereby the defendant was bound to pay his proportion of the losses, did not prevent the parties to the agreement from becoming partners inter sese. MUNRO 0. WHITMAN 568 PARTIES Partners action by one against another, but not against all when maintainable. See WILLS v. SIMMONDS 189 PARTY To transaction cannot testify a* to intention with which act was done as agairwt the legal representatives of other party Code, % 399. See TOOLBY v. BACON 178 PARTY AGGRIEVED Who is, under chap. 338 of 1858 Assessment purchase of property after confirmation of. See MATTER OF MOORE 518 PARTY TO ACTION A cestui que trust is not a necessary party to an i^lion, to enforce a claim for termte* rendered to a (rust estate. See STANTON D. KINO 4 PARTY WALL Right lo use of chose in action, when.] 1. B. erected on the land of his wife a building with his own money, and before the erec- tion thereof agreed with C. to place one-half of one of the walls thereof on her land, under an agreement that she should, when the wall was used by her, pay for so much thereof as she should use. The Agreement was between B. and C. personally, and not made by B. for or on behalf of his wife. 694 INDEX. PARTY WALL Continued. r AM. Held, that such agreement was a mere chose in action, the right to which was in B. , and not having been transferred to his wife, could not be trans- ferred by her to her grantees. MCDONNELL c. CULVER 155 3. Covenant by grantee to . HOLT 336 PRACTICE Perjury in a former suit.] 1. Issues tried in a former suit can- not be retried in another between the same parties, upon allegations that one of the parties thereto, and her witnesses, conspired together to and did commit perjury in the former, by means of which a verdict and judgment were had against the present plaintiff, then defendant. Ross v. WOOD. 185 2. Remedy.] The proper course for the aggrieved party to pursue is to apply for relief in the action itself, by a motion for a new trial on the ground of surprise or newly discovered evidence, or other matter out of which his claim for relief arises. Id. 8. Orov.ndfor bringing anotJier action, to retry tJie same issues.] To obtain relief by an independent action in a court of equity against a judgment obtained through fraud and crime, it must appear that the party had no remedy at law in the action, and that there had been no fault or negligence on his part. A failure to promptly apply for appropriate relief in the action would be negli- gence; and that an application had been made without success, would afford no ground for a substantial review of such action, in another suit in a different court. Id. 4. Counter-claim Separate action brought therefor.] A party, except in cases commenced in a Justice's Court, having a demand against another can maintain an action therefor, although at the time an action is pending against him by the same party, wherein he could have set up such demand as a counter- claim. INSLEE t>. HAMPTON 230 5. Entry of order.] If a party who is entitled to enter an ordei fails to do so for twenty-four hours after "the decision has been made, any party interested may have it drawn up and entered. MATTER OF RHINEBF.CK AND CONN. R. R. Co , 34 6. Wfien exceptions first heard at General Term.] Where the complaint is dismissed at the Circuit, the court may direct the plaintiff's exception to such disposition of the case to be heard in the first instance at the General Term, and that judgment be suspended in the mean time. Hoagland v. Miller (16 Abb. Pr., 103) not followed. BROWN v. CONGER. . . 625 7. Pirst department Motion to confirm referees report Special Terms at which heard.] Where, upon the trial of an equity case at the Special Term in the first district an interlocutory decree is made directing a refer- ence for certain purposes, a motion to confirm the report must be made at a Special Term for enumerated motions, and not at a Secial Term and chambers lor non-enumerated motions only. EMPIRE B. AND M. L. Assoc. v. STEVENS. . 515 INDEX. 697 PRACTICE Continued. TA.O3. . 8 - - Inquest foreclosure.] In an action to foreclose a moitgaee an inquest taken by the plaintiff upon defendant's failure to file an affidavit of merits is irregular, and a judgment entered thereon will be set aside DEVLIN v. SHANNON ................................... ^ 531 - County Court on appeal to, questions raised in Justice's Court as to regularity, etc., must be examined. v. REED Mechanic's lien bill of particulars verification of. See GKEYC. VORHIS - Interpleader Code, 122 Supplemental complaint. See WILSON v. LAWRENCE Irrelevant 'matter striking out of discretionary when improper See TOWN OF ESSEX v. N. Y. AND CANADA R R. Co - Effect on judgment against an infant, of guardian ad litem's neglect to plead infancy. See PHILLIPS v. DUSENBERBY ................. ; .................. 343 - Joint debtors death of one during pendency of action revival of against hi representatives. See MASTER v. BLACKWKLL ...................................... 318 - Examination of party before trial attorney entitled to notice Code, 391. See PLUMMER v. BELDEN ....................................... 468 Malicious prosecution entry of nolle proxequi with defendant's assent^ a sufficient end of the prosecution to support an action. See MOULTON v. BBECHER ..................................... 100 - Misjoinder of causes of action mechanic's lien foreclosure of fraud- ulent grantees of premises parties defendant. See TISDALE v. MOORE .......................................... 19 - Immaterial averments in complaint. See WAGGONER v. MILLINGTON .................................. 143 - Settlement of case presenting only questions of law insertion of all the evidence in, not proper Statement of facts established by the evidence Substi- tuted for t/ie evidence, wJien. See MARCKWALD v. OCEANIC STEAM NAV. Co ...................... 547 - Surrogate power of, to distribute surplus on sale of lands. See ARKOWSMITH v. ARROWSMITH ................................ 608 Failure to serve bill of particulars with notice, as required by 10, chap. 402, Laws of 1834 waived by service of answer . See NOBCOTT o. FIRST BAPTIST CHORCH op ROME ................. 639 - Report of referee on conflicting evidence findings that evidence "leave* the mind in doubt, " error mistrial. See BRADLEY v. MCLAUGHLIN .................................... 645 PREGNANCY Of widow physicians' fetsfor examination a charge on the estate. See ROLLWAGEN v. POWELL ..................................... 210 PRESUMPTION Concubinage.} 1. A cohabitation illicit in its origin, is presumed to continue to be of that character unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. FOSTER v. HAWLEY, 68 2. -- Where a married woman, who has a separate estate and carries on business in relation thereto, keeping a bank account in her own name, draws a check upon such account, payable at a future day, on which she borrows money, the law presumes, in the absence of evidence to the contrary, that buch money was borrowed for the benefit of her separate estate, and holds ber liable therefor. NASH v. MITCHELL .................................. 471 3. - In favor of referee's report.'] When the uncontradicted evidence establishes the existence of a fact, essential to the plaintiff's right to recover, HUN VOL. VIII. 88 698 INDEX. PRESUMPTION Continued. it will I 'f presumed, in support of a judgment in his favor, that such fact was found by the referee, though not so stated in his report. B ANCKKR v. MAYOR 409 That the face of a promissory is its value. See LOOMIS v. MOWRY 311 That services rendered by one relative for another are gratuitous degree of consanguinity necessary to create. tiee GALLAGHER . VOUOHT 87 PRINCIPAL AND AGENT Promissory note signed J. 8. Me Clare, agent.} In an action upon a note, the fact that the name of the defendant did not appear upon the face of the note, would not prevent the plaintiff .roru showing that the defendant was bound thereby; it would be competent under an allegation that the defendant made and delivered the note, to show that the person signing the note was duly authorized by defendant so to do. MOORE v. McCLURK 557 Agency revoked by death of principal. See HKLMKK v. ST. JOHN 166 PRINCIPAL AND SURETY Mortgage Agreement to extend between holder and grantee covenanting to assume, made without consent of grantor (mortgagor) discharges mortgagor.} Where a party by deed assumes the payment ol a mortgage executed by his grantor, he becomes the principal debtor, and the relation created between him and his grantor is that of princi- pal and surety. Such deed is notice to a subsequent holder of the mortgage of this relation, and an extension of the time of payment by such holder, even with the express understanding that the bond and mortgage shall remain, in every other respect, unaffected by suid agreement, when made without the consent of such grantor, discharges him from all liability to the holder of the mortgage. CALVO v. DAVIES 223 PRISONER'S BELIEF In his autfwrity to xign paper forgery. ] Where a person is indicted for affixing the name of another person to a written instrument without authority, he is entitled to an acquittal if it appear that he had fair grounds for believing that he had such authority, even though he had not. PARMELEK v. PEOPLE 623 PROFITS Agreement to share when it creates a partnership. See MTTNKO v. WHITMAN 55i? PROMISSORY NOTE Duty of purchaser notice, sufficient to require inquiry.] 1. In an action by the plaintiff, a bona fide purchaser, before maturity, of the following note : GUILFORD, Nov. 29, 1870. For one Hinckley knitting machine warranted, I promise to pay J. H. Wells or bearer thirty dollars, one year from date with use. DANIEL JOHNSON. the defendant offered to prove a parol warranty of the machine and breach thereof, and claimed to recoup damages therefor. Held, that the evidence was inadmissible. MABIE v. JOHNSON 809 2. Patent right sale of , consideration foi Statute of Pennsylvania.] Section 3 of the act of April 12, 1872, passed by the legislature of Pennsyl- vania, provides, that whenever a promissory note is given in consideration of the sale of a patent right, " the words ' given for a patent right ' shall be prominently and legibly written or printed on the face of such note, * * * and such note or instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder." Held, that the words, "such note or instrument," in the last clause of the sentence, mean a note or instrument having on its face the words " given for a patent right," and do not include one which, although given ipon the sale of a patent right, does not bear those words. PALMER v. MINAR 848 3. Law of another State knowledge of existence of a question of INDEX. 699 PROMISSORY NOTE - Continue* FAai fact, not of law.] This action was brought against the maker of a promis- sory note, purchased by the plaintiff (who knew that the original considera- tion of the note was the sale of a patent right, but not the Pennsylvania law upon that subject), in this State, before maturity and in good faith. The defendant alleged that the note having been given in the State of Pennsyl- vania upon the sale of a patent right, and not having the words "given for a patent right " upon its face, was void under section 4 of the above act, which declares it to be a misdemeanor for any person knowing the con- sideration of a note to be the sale of a patent right, to "take, sell or transfer " the same unless it has the words "given for a patent right " upon its face. Held (1), that the act did not in terms forbid the making of such a note, but only its sale or transfer; (2), that the statute did not affect the validity of such a note when purchased in this State before maturity and in good faith; (3), that where a purchaser in this State did not know of the existence of the said statute, his right to recover upon the note was not affected by the fact that he knew that it was given upon the sale of a patent right. Id. 4. Garnishment procees.] The laws of Florida provide that in any action commenced therein a notice of garnishment may be issued to any person indebted to the defendant in said action, requiring him to state the amount of his indebtedness at the time of the issuing of the summons, and authorize a judgment to be entered in favor of the plaintiff for the amount of such indebtedness, if it, be admitted, and an execution to be issued thereon. Held, that these provisions included all debts without regard to the form in which they were contracted, and that they were applicable to negotiable paper. SIMON v, HUOT 878 5. Effect of, on rights of bona fide purchaser.} Accordingly where, in an action upon a promissory note, made and payable in that State, brought by one who had purchased the same in this State, without notice and for full value, it appeared that while the payee still owned the note an action had been commenced against him, in which, after due service of notice of garnishment on the makers, judgment had been entered against them for the amount thereof, and their property had been seized under an execution issued thereon, held, that the court erred in directing a verdict for the plaintiff. Id. 6. Surrender and cancellation of note, not paid in full no right of action exsis thereafter for amount unpaid.} Where a creditor surrenders to his debtor an obligation for the purpose of cancellation, and the latter, in pursuance of such agreement, cancels and destroys the same, no action can thereafter be maintained thereon by the creditor, in the absence of any fraud, mistake or illegality in the transaction, even though the amount paid by the debtor was less than the amount due upon the obligation surrendered. KENT v. REYNOLDS 889 Obtained by fraudulent representations measure of damages where totes are not transferred before maturity. See THAYER v. MANLEY 880 Invalid in hands of payee bona fide purchaser of recovery by, restricted to amount paid by him. See TODD v. SHELBOURNE 610 Made by lunatic action upon burden of proof Inquisition prima facie evidence of unsound mind. See HICKS v. MARSHALL 897 PROTEST Payment under of assessment Voluntary payment right to recover amount paid. See PEYSER v. MAYOR 418 PROXIMATE CAUSE Of death injury from riding on street car blood poisoning. See GINNA t>. SECOND AVENUE R. R Co 4&4 PUBLIC CHARITIES AND CORRECTION Department of, New York -ity can neither sue nor be sued. Set N. Y. BALANCE DOCK Co. v. MAYOR 847 700 INDEX. Him. PUBLIC HIGHWAY Railroad no tice to commissioners.} When the legislature has located a railroad on an avenue or highway the necessity of notice and agreement with the commissioners of highways is disposed oft MATTER OF PROSPECT PARK AND C. I. B R, Co W PUBLIC OFFICE Bight to remove from, vested in State alone. See PEOPLE EX REL. DEMAIIEST t. FAIRCHILD 334 PUBLIC OFFICES. Acts done by tirtute officti Venue in action against. See PEOPLE t>. KINGSLEY 238 PURCHASER : See VENDOR AND PURCHASER. QUANTUM MERUIT Lease possession under of part of premises. See McKiNNEY t>. HOLT. 8M QUO WABJ1ANTO Code, 432 Attorney-General cannot be compelled to bring action of.] 1. The right to remove one who has unlawfully intruded into a public office is vested in the State alone, and its decision, as to whether or not an action shall be brought to remove such intruder therefrom, is final and cannot be reviewed by the courts. PEOPLE EX REL. DEMAREST . FAIRCHILD 334 2. Commissioners of excise Several persons, claiming to constitute a board, united as relators.] In an action by the people on the relation of three per- sons, claiming to constitute a board of excise, against three others whom they allege have usurped the said office, it is not necessatry to allege <>r prove that any one of the relators is entitled to the office occupied or claimed by any one of the defendants; the object of such action is to determine which set of persons lawfully compose or is entitled to compose the board of excise. PEOPLE EX REL. BABCOCK v. MURRAY 577 RAILROAD Acquisition of lands by Chapter 140, Laws of 1850.J 1. A railroad company presented its petition to the Supreme Court to acquire title to certain lands. The owners opposed the application, but the court appointed commissioners of appraisal. The commissioners made their report to the court, and on motion of the company an order was made confirming it and directing the amount of the award to be paid to the owners or deposited to the credit of their attorney. The company refused or neglected to file the papers or pay the award. An order was therefore obtained by the owners for the company to show cause why the petition, order thereon, report, and order confirming it should not be filed, and on the return day an order was made directing the filing of the same, the payment of the award in ten days, or that a precept issue to collect the award ; from which order the company appealed. Held, that the recording of the order of confirmation and payment of the sum awarded would vest the title to the land in the company. That the recording of the order was the duty of the clerk, and the payment of the award the duty of the company. That the right of the owner to have both performed had been adjudged by the court, and the rights and obligations of both parties had thereby become fixed, subject only to the right of appeal given by the statute, and neither party could recede or abandon the proceed- ing without the consent of the other. MATTER OF RUINEBECK AND CONN. R. R. Co 34 2. Chapter 282, Laws 0/1854.] By section 5, chapter 282, Laws of 1854, the court is vested with power to make all necessary orders and give the necessary directions to carry into effect the object and intent of the etatute (chap. 140, Laws of 1850), and the order appealed from came within this power. Id. 3. Entry of order when defeated party entitled to enter.'} If a party who is entitled to enter an order fails to do so within twenty-four hours after the decision has been made, any party interested may have it drawn up and entered. Id. INDEX. 701 tt.ATT.-p.OA-n _ Continued. rAM . 4. -- Eminent domain Defective title right to perfect under chapter 140 if 1850.] It having been held that the petitioners, a railroad company, obtained no title to the lands, as against the owners of the fee, by the legisla- tive permission to lav down their tracks on a certain highway on which they had built their road, orders made on an application by them for the appoint- ment of commissioners to assess the value of the lands for the purpose of compensating the owners should be sustained, on the ground that the case comes within that part of the general railroad act (chap. 140, Laws of 1850), which permits a railroad company to perfect a title found defective. MATTER OF PROSPECT PARK AND C. 1. R. R. Co ...................... 30 6. - Public highway notice to conimisioiurs of. ] When the legislature has located a railroad on an avenue or highway, the necessity of notice and agreement with the commissioners of highways is disposed of. Id. 6. - Fire occasioned by sparks Negligence.] The mere fact that a fire is occasioned by sparks emitted from the smoke-stacks of locomotives used by a railroad company does not, of itself, establish negligence on its part, nor would it be sufficient to authorize a jury to infer negligence, unless the emis- sion of the sparks was unusual in degree or character, or the sparks were of an extraordinary size and such as would not be emitted from perfectly constructed locomotives. McCAio . ERIE RAILWAY Co .............................. 5W 7. - Burden of proof.] In a case not within such exception, the burden of proving that the railroad company did not exercise due precaution rests on the plaintiff. Id. 8. - Verdict of jury ground of.] Upon the trial of an action to recover damages sustained from a tire started by sparks from a locomotive owned by the defendant, the judge charged the jury " if all the evidence satisfied them that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what that negligence consisted, they would be authorized to find a verdict for the plaintiff." Held, that this was error; that if the jury could not find in the evidence any rational ground upon which to impute negligence to the defendant, they should give a verdict in their favor. Id. - Use of streets by, in Long Island City. See LONG ISLAND CITY v. LONG ISLAND R. R. Co ................ Stf - Erie Railway not bound to keep open its ticket offices Fare payment of at office, or to conductor different rates. See BORDEAUX v. ERIE RAILWAY Co .............................. 579 - Horse cars riding on platform proximate cause of death when not negligence. See GINNA v. SECOND AVENUE R. R. Co .......................... 494 - Employment of brake/nan scope of forcibly ejecting passenger Excet- sive damages verdict of jury when not set aside. *! PECK t>. N. Y. CEN. AND HUD. R. R. R. Co .................... 288 RATIFICATION What acts of plaintiff are a ratification of a teieurt under an attachment. See HERRMAN v. GILBERT ..................................... * - Of acts of agent, by insurance company. See SHAFT v. PHOSNIX MUT. LIFE INS. Co BSTATE Purchase of, subsequent to confirmation of auettment presumed to have been made subject to it. See MATTER OF MOORE ............. ......................... - Inheritance subject to power of sale title in heirt at law until tab. See PEOPLE EX REL. SHAW v. SCOTT ............................ > - Action to determine conflicting claims to cottt in, on dimittal of eom- See RUGEN v. COLLINS 702 INDEX. REAL ESTATE Continued. MM. - Condition subsequent who not a stranger to the title. &wPoar. WEIL 418 Grant of lot on street fee to center , passes when. See MOTT r. MOTT 474 RECEIPT Ignorance of its contents acts of receiptor inconsistent icitJt, knowl edge thereof evidence action for salary".} The plaintiff was formerly employed to sweep the markets in the city of New York, at sixty dollars per month. Subsequently, the comptroller reduced the pay to fifty dollars per month. This action was brought by the plaintiff to recover the differ- ence, to which he claims to be entitled. Upon the trial, pay rolls signed by the plaintiff, by making his mark, were put in evidence, which stated that the wages were $000 per annum, and containing u receipt in full payment of all services rendered. Plaintiff offered to show that at the time or signing the pay rolls a suit was pending, brought by him to recover the additional ten dollars per month for services previously rendered, in order to show that he was not aware of, and did not assent to the statements contained in the pay rolls. Held, that the evidence was properly rejected. DREW T. MAYOR 443 When evidence of promise to pay to another the money received. See HOWE MACHINE Co. o. FAGAN 174 Proof of signature to. See ARMSTRONG v. FARGO 175 Accord and satisfaction what constitute*. See PARDEK t>. WOOD 684 Bailee'* lien not lost because of not being expressed in. See HAZARD t>. MANNING 813 REFEREE Report of, on conflicting evidence Findings that evidence " leaves the mind in doubt " error Mistrial. See BRADLEY v. MCLAUGHLIN 546 Fees foreclosure sale.} A referee is only entitled to receive the same fees for selling real estate, as by law is allowed to a sheriff. WARD v. JAMES 52$ Report made under interlocutory decree motion to confirm at what Special Term, in first department, to be heard. See EMPIRE B. AND M. L. Assoc. v. STEVENS 515 RF.TiATlv.isS Services between, action for degree of consanguinity neces- sary to create- presumption that they are gratuitous. See GALLAGHER v. VOUGHT 87 RELATORS Several persons claiming to constitute a board, united as. See PEOPLE EX BEL BABCOCK . MURRAY 577 RELEASE In action to recover damages against a fraudulent purchaser on a foreclosure sale a release by plaintiff of aU interest in the property to a person acquiring title from such purchaser, when no defense to the action. See DUSBNBURY v. CALLAGHAN 541 Right of grantor to release grantee from assumption of mortgage. See STEPHENS v. CASBACKER 116 RET/TRF Demurrer not sustained when the facts alleged justify any though not the relief asked for. See MACKBY v. AUER 180 REMAINDER Vested action to restrain waste by one who hold* main- tainable. See Wn.LiAMS v. PKABODT. . 171 INDEX. 703 PACK. REMEDY Perjury in aformer suit not ground for bringing another action, to retry the same issues motion for new trial. See Ross v. WOOD , 195 Proceedings for opening struts certiorari an appropriate remedy for the renew of. See PEOPLE EX REL. ACKERLY v. Cmr OF BROOKLYN M REMOVAL FROM OFFICE Quo wrranto.) The right to remove one who has unlawfully intruded into a public office is vested hi the State alone and its decision, as to whether or not an action shall be brought to remove such intruder therefrom, is final, and cannot be reviewed by the courts. PEOPLE KX KEL. DEMAREST v. FAIRCHILD 334 REPRESENTATION Fraudulent.} Persons dealing with a banker in good faith, and in reliance upon his apparent solvency, will be protected against the consequences of the concealment by the banker of his real con- dition, if he is at the time not merely insolvent but bankrupt, and where such concealment involves a degree of bad faith from which the law will imply fraud, although no actual representation has been made. ROEBLING v. DUNCAN 50g RESALE Of property " difference and costs and expenses on the resale" subsequent taxes included within. See RXJHE v. LAW 251 RESERVATION Condition subsequent who not a stranger to the title. See POST v. WEIL 4lg RESIDENT ALIENS Not required to give security for costs, unless residence is shown to be merely temporary. See NORTON v. MACKIR 5$0 RESIDUARY LEGATEE When he may compel a discovery of personalty held by life beneficiary. See WILLIAMS v. PBABODY 371 REVIVAL Qf action, against representatives of deceased joint debtor where death occurs during pendency of action. See HASTEN v. BLACKWELL 813 ROOF Improper construction of landlord liable for injuries caused thereby. See WALSH v. MEAD 887 RULE 36 Authorising inquests to be taken in cases in which no sufficient affidavit of merits has been made and served, does not apply to actions in equity. See DEVLIN v. SHANNON 88! SALARY Action for, by one unlawfully kept out of office liability of city for payment.] On the last of December, 1872, the plaintiff, assistant clerk of one of the District Courts of New York, was removed from that office by the justice of the court and one Keeting appointed thereto, who thereafter occupied the office and discharged the duties thereof until March, 1874, when the plaintiff was restored by virtue of , judgment of ouster obtained by him. The salary established by law was paid to Keeting from January, 1873, to December, 1873; that due for the months of December, 1873, and January and February, 1874, still remained in the hands of the defendant. In an action by the plaintiff to recover the salary from January, 1878, to March, 1874, held, that he was only entitled to recover so much thereof as remained in the hands of the defendant; that his remedy for so much as had been paid to Keeting was against the party who committed the wrong by removing and excluding him from the office. DOLAN v. MAYOR 44 Of assistant district attorney of New York not affected by chap. 688, of 1871. See FELLOWS v. MAYOR 48* Action for Receipt ignorance of its contents acts of recciptor inetm- tittent with knowledge thereof fvidence of, inadmissible. See DBKW v. MAYOR 441 704 INDEX. BALE Partition of personal property vessel. See ANDREWS . BETTS 322 Warranty inspection of goods before delivery effect of on Penalty. SwMcPARLIN V. BOYNTON 441 Of the entire property of one corporation, for stock of another ulegl. See TAYLOR t>. EARLE 1 Of land under decree of surrogate, his power to distribute surplus on such tale. See ARROWSMITH t>. ARROWSMITH 606 Of assets of corporation on dissolution when trustees are unable to agree chap. 442, of 1876. See MATTER OP WOVEN TAPE SKIRT Co 508 SCANDALOUS MATTER Responsibility for insertion of in pleadings costs imposed on attorney. See He VET v. C ANTRELL and TADDIKEN v. CANTRELL 533 SECURITY For costs resident aliens not required to give. See NORTON v. MACKXE 520 SEIZIN AND WARRANTY Covenants of breach of. See DUSENBTJRY v. CALLAGHAN 541 SEIZURE Under attachment what acts of plaintiff are a ratification of. See HERRMAN v. GILBERT 253 SEPARATE ESTATE Of married woman Contracts benefit of separate estate presumption of law. See NASH v. MITCHELL 471 SERVANT Injuries to, arising from the pursuance of master's instruction liability of master for. See SPAN v. ELY 255 SERVICES Between relatives action for degree of consanguinity neces- sary to create presumption that they are gratuitous.] Where services are rendered by one person for another, without any agreement in respect to compensation therefor, the law will ordinarily imply an agreement to pay what such services are worth, except in the case of near relatives or members of the same family, when the law regards such services as acts of gratuitous kindness and affection ; but this exception cannot be extended to include a case where the defendant's wife and the plaintiff's mother were cousins, the relationship between the parties being only by affinity. GALLAGHER v. VOUGHT 87 Rendered to trust estate claim for, not a lien upon. . See STANTON v. KING 4 SHERIFF Receiptor right of has a lien for his fees.] 1. A constable levied on certain property under a judgment in favor of the defendant, tgainst the plaintiff, and committed the property to the defendant as a receiptor. Held, that the latter acquired a valid lien upon the property, for his just and lawful charges as such; that payment of the judgment to the sheriff, upon the judgment of affirmance rendered upon appeal to the County Court, did not discharge the lien of the defendant, or of the constable for his fees. ALIGER v. KEELER. . . 121 2. Liable for ~d.a*e of levy on property of judgment debtor, on his being adjudged a bankrupt.] The plaintiff recovered a judgment against one Prink for $346.04, and on the 26th of June, 1873, under an execution issued thereon, the sheriff levied on sufficient personal property to satisfy the exe- cution. After tne ievy, proceedings in bankruptcy were taken against Frink, and the sheriff released the property levied on and returned the execution unsatisfied. On a suit against the sheriff therefor, he set up as a defense : INDEX. 70 5 SHERIFF U&uauued. FAa-> 1st. That pending proceedings in bankruptcy he (the sheriff) was enjoined from further proceedings on the execution. Held, that this was 110 defense. For if it applied to the property levied on, the injunction neither commanded or authorized the sheriff to release the same* or discharge it from his levy. It simply restrained him from making any disposition of it. But it did not apply to the property levied on, as when a levy has been made before the commencement of proceedings in bank- ruptcy, the possession and legal title are in the sheriff for the purpose of satisfying the process in his hands, and he had the right to go on and sell the property, being accountable only for the surplus, if any, to the bank- ruptcy court. 2d. That the plaintiff directed the sheriff to retain the execution till requested to make a return thereof, and subsequently directed him to make a return immediately. Held, that this was no excuse for discharging the property and releasing it from custody, especially as the direction was given upon the sheriff's advice and statement, that he would in the mean time hold his levy. 3d. That the United States marshal, by virtue of a warrant issued to him in said bankruptcy proceedings, and before the return of the execution, took possession of the property levied on. Held, that this was no defense; that the taking by the marshal, even if done against the consent of the sheriff, was without authority and illegal, the sheriff having both the legal title and possession of the property; that, even supposing a yielding up thereof to a vis ma/jor would have afforded an excuse, the sheriff surrendered the property upon the mere exhibit of the warrant and demand of the marshal. The marshal had no authority to take it, and an application by the sheriff to the District Court which issued the warrant would doubtless have resulted in an immediate release of the prop- erty, or of an amount thereof sufficient to have satisfied the execution; and it was the sheriff's duty to have resorted to all reasonable means to protect his levy, instead of surrendering it without objection or remonstrance. 4th. That the plaintiff had proved the claim set forth in the complaint, in the proceedings in bankruptcy, before the commencement of his suit against the sheriff and a dividend had been duly declared to the plaintiff on such proof of claim. Held, that although section 21 of the bankruptcy act provides that " no creditor proving his debt shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against the bankrupt, and all proceedings already commenced or unsatisfied judgments already obtained thereon against the bankrupt shall be deemed to be discharged and surrendered thereby," yet the proof of the judgment in the bankruptcy court (admitting it was legally done) did not In any manner affect the liability of the sheriff for the previous unauthorized release of the property levied on. The intent of the section was only to prevent future proceedings against the bankrupt or his estate. The liability of the sheriff for releasing the property was a wholly collateral liability, arising from a breach of official duty, and did not constitute in this case any claim or security which could be enforced by the assignee in bank- ruptcy, to whom the property levied on had been delivered. ANBONIA BRASS AND COPPER Co. v. BABBITT ......................... 157 8. - CTwpter 495 of IM1 fees of officers in criminal proceeding* under by whom audited.} The term "criminal proceedings," as used in chapter 495 of 1847, providing for the payment, by the several towns and cities, of all fees and accounts of magistrates and other officers for criminal proceedings, instituted for certain offenses committed therein, embraces all necessary and legal actions by magistrates and ministerial officers having in view the punishment of public offenders and violators of public rights and duties, as distinguished from civil injuries. PEOPLE EX REL. VAN TABSKL v. SUPERVISORS ......................... 275 4. - Common council of Hudson power of to audit claimt.] Where the sheriff of the county of Columbia rendered services in receiving, discharging and boarding prisoners committed to iail by the police justice of the city of Hudson for offenses committed therein, none of which were felonies, held* HUN VOL. VIII. 89 706 INDEX. TF Continued. r AM that even if some of the cases in which they were rendered did not fall within the strict definition of " criminal proceedings," yet as they were all rendered in other than civil proceedings, and in the line of his official duties he was entitled to compensation therefor. A just allowance in such cases would be the amount fixed by statute for imilar services in other proceedings. A.'. 5. 97, chapter 468 of 1872.] Under section 97 of chapter 468 of 1872, providing that the common council of the city of Hudson shall be "the board of auditors to examine 'the accounts of officers of the city, with the same powers and shall proceed in the same way as is prescribed by law for the board of town auditors in towns," the common council is not restricted to the examination and audit of the accounts of "officers " of the city, but it is vested with all the powers possessed by the board of town auditors of towns, and it is its duty to audit bills presented by the sheriff of Columbia county for services chargeable under the act of 1847, upon the said city. Id. Execution Exemption law, chap. 184 of 1859 duty of debtor to claim exemption within reasonable time. See BROOKS t>. HATHAWAY 290 SHERIFF'S BOND Statute mandatory permissive. ] 1. The provision contained in section 3 of title 5, chapter 8, part 3 of the Revised Statutes, that upon due proof of any default or misconduct of the sheriff in his office " the court shall order " his official bond to be prosecuted, is not mandatory but permissive, and the court will not allow such action to be brought unless it believes it to be just and proper so to do. PEOPLE v. CONNER 538 2. Action upon when permitted.] Where, upon an appeal to the Court of Appeals from a judgment of the General Term, affirming a judg- ment recovered against a sheriff for a failure to return an execution within the time allowed by law, the sheriff gives the bond required by the Code to stay all proceedings upon the judgment pending such appeal, the court will not allow an action to be brought upon the official bond of the sheriff until such appeal be decided. Id. SHIPPING Sale of vessel, owned by tenants in common power of Supreme Court to direct jurisdiction of admiralty court partition of persoiial property. See ANDREWS v. BETTS 323 SIGNATURE On margin disputed effect of .] 1. P., not mentioned in the body, signed his name upon the margin of an agreement, executed at its foot by H. Held, that such signature did not express what participation in the obligation P. meant to take, whether as surety, guarantee or original con- tractor, but it might, perhaps, with propriety be said, that it was evident from his in no way expressing any other obligation or intention, that he intended to bind himself as a joint contractor. HAUCK v. CRAIGHEAD 237 2. Where the complaint was originally in form on guarantee, but an amendment allowed on the trial charged P. as an original joint contractor, rendering it necessary for the plaintiff to establish by competent proof that such was his relation, because his signature was by indorsement and not by ubscription to any expressed obligation of any kind, and evidence having been given to show why P. signed the paper where he did, and in that way to show what he meant to assume, or what, in other words, was his relation to the contract, held, error, to decide that the action turned upon a question of law and to dismiss the complaint as to P. on the ground of misjoinder, holding the contract to have been made by P. as guarantor. In. 3. Liability thereon to be submitted on proof to the jury.] That the plain- tiff was entitled to have the issue whether or not P. was a joint contractor with H., created by the amendment allowed upon the trial, passed upon by the jury. Id. Proof of, to receipt. . See ARMSTRONG . FABOO. . , 171 INDEX. 7Q7 SPECIAL GUARDIAN Owner of tax title to infants' real estate cannot dispose of fits ineumbrance upon estate, although it was acquired previous to such appointment.] Where a person had been appointed a special guardian to eeU certain real estate belonging to infants, and, at the time, was himself the owner of a tax title thereto, and pending the proceedings under his appointment, sold the tax title and retained the money, claiming it as the proceeds of his individual personal property : Held, that having been appointed special guardian for the sale of the land while owner of, and prior to the sale of his tax title thereto, the being clothed with such office deprived him of the power of disposing of the tax title, and the sale of the same must be considered as one accruing to the infants' advan- tage, and he must account to them therefor, but should be allowed his pay- ments and expenses in reference to such tax title, with interest, up to the time of the adjustment of the balance, if any, due to the infants. SPELLMAN v. TERRY 905 SPECIAL TERMS In first depai-tment Motion* to confirm referee 1 s report made under interlocutory decree at which to be heard. See EMPIRE B. AND M. L. Assoc. v. STEVENS. 515 STATE OFFICER Assistant district attorney of New York salary of not affected by chap. 583 of 1871. See FELLOWS v. MAYOR. 484 STATUTES 15. 8., 356, 1,2 Action to recover town moneys must be brought by supervisor. See TOWN OF CHAUTAUQUA v. GIFFOKD 152 IB. &, 574, 57 Lands taken for highway garden what is. See PEOPLE EX REL. STANTON v. HORTON 357 2 B. &, 88, 84, 38 Notice to creditors to present claim when sufficient. See PRENTICE v. WHITNEY 300 2 It. 8. , 473, 92, 93 Action to recover town moneys must be brought by supervisor. See TOWN OF CHAUTAUQUA v. GIFFORD 158 2 B. S. , 602 Decision of " highest tribunal " Acts done under Pro- tection against penalty or forfeiture therefor. See CHENANGO BRIDGE Co. v. PAIGE 292 2 R. 8. (Earn. ed.), 710, 11 Indictment for marrying a married person sufficiency of allegations as to prior marriage. See SAUSER v. PEOPLE 802 2 B. 8. (6th ed.), 928, 84 Civil damage act Intoxication occurring vhUe violating Sunday law no defense. See BEBTHOLF v. O'REILLY 2 R 8., chap. 5, title I, art. 6, 5, Q Act for the discharge of impris- oned debtors ''just and fair" meaning of what must be shown to prevent discharge. See MATTER OF BRADY 4 <> 7 3 R, S. (Qth ed.), 110 Power of surrogate to order investment of surplus money, on sale for debt. See ARROWSMITH v. ARROWSMITH wo 3 B. 8., title 1, chapter 6 Although it refers to a 1 ' lost or destroyed wttl, n should have a liberal construction, and the fraudulent destruction of a single item or distinct portion of a will must be considered as the destruction of a will by design under section 63, or fraudulent, under section 67, if such destruction effects' the disposition of the property of the testator in any essential particular. See HOOK v. PRATT loa 3 jj. & t 3 ( title 5 'hap. 8 Construction of, at to action on shertfTt tond. See PBOPLK v. CONNER W r08 INDEX. SESSION LAWS 1882, chap. 224] Under section 14, authorizing the Erie Railway Company " to fix, regulate and receive the tolls and charges by them to be received for the transportation of property or persons," it may establish two rates of fare, discriminating between the cases where the ticket is purchased of a conductor upon a train, and where it is purchased at a ticket office. BORDEAUX v. ERIE RAILWAY Co 579 1847, chap. 495 Fees of officers in criminal proceedings under by who at audited. See PEOPLE EX RHL. VAN TASSEL v. SUPERVISORS 275 1849, chap. 375.] Section 3, providing that all contracts made between persons in contemplation of marriage shall remain in full force after such marriage, was not intended to repeal the provisions of the statute of frauds, declaring that every agreement made upon consideration of marriage shall be void, unless it be in writing. BROWN v. CONGER 625 1850, chap. 102, 16 Justices' Courts in the city of Brooklyn. See DOUGLASS v. REILLY 85 Chap. 140 right of railroad under, to perfect title to land, found defective. See MATTER OF PROSPECT PARK AND C. I. R. R. Co 30 Chap. 140 recording of the order of confirmation of the report of the commissioners of appraisement and payment of the sum awarded vesti the title of the land appraised in the railroad company. See MATTER OF RHINEBECK AND CONN. R. R. Co 84 1850, c/iap. 150 Power of surrogate to order investment of surplus money on sale for debt. : V See ARROWSMITH v. ARROWSMITH 608 1851, chap. 504 Sufficient averment in indictment under See PICKETT v. PEOPLE 88 1854, chap. 282, 5 Vests the court with power to make att necessary orders and give the necessary directions to carry into effect the object and intent of chap. 140, Laws of 1850. See MATTER OF RHINEBECK AND CONN. R. R. Co 84 1854, chap. 402, 10 Failure to serve bill of particulars, as required by waived by service of answer. See NORCOTT v. FIRST BAPTIST CHURCH OF ROME 639 1855, chap. 214 Sufficient averment in indictment under. See PICKETT v. PEOPLE 88 1858, chap. 338 Who is party aggrieved under Assessment purchase of property after confirmation of. See MATTER OF MOORE 513 1859, chap. 134 Duty of debtor to claim exemption under, within reason- able time. See BROOKS v. HATHAWAY 290 1860, chap. 348, 8 The omission of an assignee for the benefit of oreditors to file the bond required by section 3 of chapter 348 of 1860, does not, certainly until the inventory is filed, per se invalidate the assignment. See VON HEIN v. ELKUS 616 Ohap. 90, 1 when separate estate of married woman chargeable under Acts by her, as her husband's agent. See COVERT v. HUGHES 805 1861, chap. 297 Construction of. See GUEST v. CITY OF BROOKLYN 97 1863, chap. 392 Appeal to County Court security on jurisdictional. See KUNTZ v. LICHT 14 1866, chap. 647, 3, aw amended by chap. 695 of 1871 County Court hat power under, on application of party aggrieved, to order taxes (when paid) to be refunded. See MATTER OF N. Y. CATHOLIC PROTECTORY ! INDEX. 709 SESSION LAWS Continued. , Am ^ chap - 953 ~ (amended by chap. 317 */ 1868) Authorizing vOiaoe ty fort Midword to issue bonds publication under consent under. See CULVER v. VILLAGEOP FORT EDWARD ............. ' ......... , . 840 - 1868 clM P- 317 (amending chap. 953 of 1867) Authorizing village of fort JSdward to issue bonds publication under consent under. See CULVER v. VILLAGE OP FORT EDWARD ....................... 340 - Ohap. 818 Construction of. See MERRITT v. VILLAGE OP PORTCHBSTER ............ , 40 -- 1869, chap. 383 Construction of. See QUEST v. CITY OP BROOKLYN ............................... 97 - 1870, chap. 175, 3 Licenses under may be granted for less than a year. See PEOPLE v. G-AINEY .......................................... gO - 1871, chap. 461, 14, sub. 5 of title 3, and 19 of title 11 Construed as to use of streets in Long Isla.nd City by railroads running to East river. See LONG ISLAND CITY v. LONG ISLAND R. R. Co ................. 58 - Chap. 583 "to regulate att salaries of officers and employes of the city and county government" of New York does not affect salary of assistant district attorney local act specifies object. See FELLOWS v. MAYOR ......................................... 434 - Chap. 695 amending % 3, chap. 647 of 1866 County Court has power under on application of party aggrieved to order taxes (when paid) to be refunded. See MATTER OP N. Y. CATHOLIC PROTECTORY .................. 91 - 1872, chap. 468, 98 Cnstruction of City of Hudson. See PEOPLE EX REL. VAN TASSEL v. SUPERVISORS ................. 275 Chap. 580 assessment when vacated. See MATTER OP N. Y. PROT. EPIS. PUB. SCHOOL .................. 457 - 1873, chap. 330 Charter of the village of Deposit which provides for the payment of att sums received for licenses into the treasury of the village not repealed by chap. 444 of Laws of 1874 creating boards of excise for the several counties of the State. See VILLAGE OP DEPOSIT v. DEVEREUX .......................... 317 Ohap. 335, 96, charter of the city of New York Right of attorney for collection of personal taxes, to costs, under. See GALE v. MAYOR ................................. ........ 370 - Chap. 489 Mechanic's lien materials furnished to vendee in pos- session under executory contract Consent Title of owner of fee when not affected. See CRAIG v. SWINERTON ........................................ 144 Chap. 646 Action under constitutional against landlord of prem- ises, where intoxicating liquor is sold Contributory negligence intoxication occurring while violating Sunday law no defense. See BERTHOLP v. O'REILLY .................................. ---- 18 - Ohap. 646 Constitutional what recoverable under exemplary damages. See FRANKLIN v. SCHERMERHORN ....... ..................... ____ 113 . Ohap. 646 Liability of employer for liquor furnished by hit bartender without his knowlege, and against his orders. See SMITH . REYNOLDS ....................................... 128 - Ohap. 646 To recover damages against owner of premises where intoxi- cating liquors are sold permission or knowledge of owner must be proved not presumed or inferred. See MRAD v. STBATTON ......................................... 14ft Chap. 646 Civil damage act when cause of action exists under. See QUAIN v. RUSSELL ......................................... 819 - hap. 820 Prosecution by third person, for violation of tarns* law discontinuance of action by overseer of the poor.} Where an action is brought to recover a penalty for a violation of the excise law, 710 INDEX. SESSION LAWS Continued. PAM under chapter 820 of 1878, authorizing any person to prosecute therefor in the name of the overseer of the poor, in case the proper persons refuse for ten days to bring auch action, the overseer of the poor, in whose name the action is brought, has no power to consent to its discontinuance with- out the consent of the persons by whom it was commenced. RECORD o. MESSENGER 283 Special and general, construed together chap. 330 of 1878 cttiip. 444 of 1874 license laws. See VILLAGE OF DEPOSIT v. DEVEREUX ... 317 1874, chap. 444 Creating boards of excise for the several counties of the State, does not repeal that provision of the charter of the village of Deposit (chap. 830 of 1873) which provides for tfte payment of all sums received for licenses into the treasury of the village. See VILLAGE OP DEPOSIT v. DEVEREUX 317 1875, chap. 345 Construction of. See MERRITT v. VILLAGE OP PORTCHESTER 40 1876, chap. 442 Authorizing the dissolution of a corporation trustees unable to agree power of court under to order sale of assets. See MATTER OP WOVEN TAPE SKIRT Co 508 STATUTE OF FRAUDS Contract in consideration of marriage partuil performance. ] 1 . Where a man agrees by parol to give a woman certain prop- erty in consideration of her marrying him, the subsequent marriage is not such a partial performance of the contract as will induce a court of equity to compel a specific performance thereof, notwithstanding the provisions of the statute of frauds. BROWN v. CONGER 625 2. Chap. 375 of 1 849. ] The third section of chapter 375 of 1849, provid- ing that all contracts made between persons in contemplation of marriage shall remain in full force after such marriage, was not intended to repeal the provisions of the statute of frauds declaring that every agreement made upon consideration of marriage shall be void, unless it be in writing Id. STAY OF PROCEEDINGS Foreclosure adjournment of sale. ] Where, after a referee has been appointed to sell real estate, in pursuance of a judg- ment of foreclosure, and a notice of sale has been duly published, the defend- ant serves an undertaking to stay proceedings upon appeal, in pursuance of section 341 of the Code, the plaintiff is not required to abandon the proceed- ings instituted by him, but may adjourn the sale, until it can be determined whether or not the sureties will justify. WARD v. JAMES 526 STOCK In national bank actual, not par value, the basis of taxation. See PEOPLE v. COMMISSIONERS OP TAXES 58C STOCKHOLDER Action by, agaiiut trustees and company when main- tainable Code, 119.] 1. A. complaint averring that there are only five trustees of a company; that the plaintiff was a stockholder when the action was brought; that three of such trustees, who were the persons charged with committing a fraud, were made defendants, and that the action is brought in behalf of all other stockholders who will join, comes within section 119 of the Code, and a demurrer interposed thereto on the grounds 'that the plaintiff has not legal capacity to sue: 1st. Because the plaintiff only became a stockholder after the matters complained of occurred; 2d. Because the statutes of this State restrict the power to bring actions of this nature to the people of the State, through their attorney-general, and to creditors of the company; 3d. That the Smith and Parmelee Gold Company alone had the right to maintain the action, and had never been requested so to do," will not be sustained. YOUNG v. DRAKE 5t 2. Evidence that corporation will not prosecute.] Although the general rule is that an action of this kind must be brought by the corporation, yet where the complaint shows that the corporation is still controlled by the same trustees who are accused of the fraud, or where such accused per- sons are a majority of the trustees, it is sufficient evidence that the cor poration will not prosecute, and that an application to the trustees to direct INDEX. 711 STOCKHOliDER Continued. TAam suit to be brought against themselves, or the derelict majority of their members, would be useless. Id. 3. A purchase of stock, after an alleged fraud is committed, does not condone the fraud, and the purchaser acquires all the rights of the person of whom he purchased. Id. In corporation acts of majority, where they do not bind minority Sale of entire corporate property for stock in another corporation illegal. See TAYLOR v. EAHLE 1 Dividend payable at future time who entitled to. See HILL v. NEWICHAWANICK Co 469 STREETS Obstruction of License from corporation, when presumed. ] 1 . The fact that a party constructing a building deposits materials therefor in the street and keeps them there during the erection of the building, with the full knowledge of the trustees and superintendent of the village, is sufficient to imply a consent on the part of the village authority to such use of the street. It does not create a nuisance to deposit such materials in the street, if they are properly guarded. VILLAGE op SENECA FALLS t>. ZALINSKI 571 2. Injury to tra'oeler.] Where a party is authorized by the corporate authority to deposit building materials in a public street, it is his duty to see that proper guards or lights are erected and maintained during the night so i hat travelers may not be exposed to injury thereby. Id. 3. Liability of party causing. ] The corporation may maintain an action against such person, to recover the amount of a judgment which it has been compelled to pay, to one who was injured in consequence of his failure to erect and maintain proper guards or lights by such obstructions. Id. 4. Bound by judgment against corporation.} Where he has been uotined of the pendency of an action against the corporation, the judgment recovered thereon is conclusive against him so far as relates to the cause of action, the amount of damages, and the other matters necessarily involved therein. Id. Regulation of their use by railways in Long Island City. See LONG ISLAND CITY v. LONG ISLAND R. R. Co 58 Proceedings for opening certiorari an appropriate remedy for the renew of. See PEOPLE KX EEL. ACEERLY v. CITT OF BKOOKLYN 06 Construction of surface water collection of, into one stream. See BASTABLE v. CITY OF SYRACUSE 587 Fee to center of when it passes with grant of lot on the same. See MOTT v. MOTT 474 STREET CARS Negligence .riding on platform of street can proximate tause of death. See GINNA v. SECOND AVENUE R. R. Co 494 STREET OPENING Neglect of owner to remove building unauthorized acts of officers in so doing liability of city therefor measure of damage*. See PETERS t>. MA YOB 400 SUBROGATION Of subsequent ineumbraneer. See FROST v. YONKERS SAVINGS BANE 86 SUBSCRIPTION For erection of church payments to be made to treasurer to be appointed by subscribers not enforceable by church corporation, created aftor fubscription. See PRESBYTERIAN Soc. OF KNOXBORO e. BEACH 844 UBSTANTIAJL INCLOSURE What it, under tub. 1, 85 of fa (Jo*. Bee POPE v. HANMKR M* 712 INDEX. SUPER VISOjlS Board of, of New York power to appoint deputy clerk. ] 1. The board of supervisors of the county of New York appointed, in 1860, a deputy to their clerk, and in 1864 fixed his salary at $4,000 per year, appro- priations for the payment of which were made by the legislature in each year from 1860 to 1870. Chapter 190 of 1870, creating a new board of super- visors, provided that all officers and subordinates of the existing board hold- ing office or place therein should continue in their respective offices and places, subject to removal for misconduct, and authorized the new board to fill vacancies. Held, that although there was no statute authorizing the old board to appoint a deputy clerk, yet the acts of the legislature annually appro- priating money for the payment of his salary, and the act of 1870, conferred such authority upon the new board. DUNPHT v. MA YOU 480 2. Appropriation for payment of.] The plaintiff was appointed first deputy clerk of the board in January, 1872, and continued to perform the duties of his office until May, 1873. No appropriation for the payment of his salary was made by the board of apportionment, created by chapter 583 of 1871, for the year 1872 and the first four months of 1873. In this action, brought by the plaintiff to recover the amount of his salary for this period, the defendant insisted that the absence of an appropriation for its payment relieved it from all liability under section 5 of chapter 583 of 1871, providing that no liability should be incurred by the officers of the county, for any purpose whatsoever, exceeding the amount of the appropriation made for that purpose. Held, that as the duration of the plaintiff's office was not pre- scribed by law, and as the board had power to terminate the same, its action in continuing to employ him, after it was known that no appropriation had been made wherewith to pay his salary, was a violation of section 5 of chapter 583 of 1871, and that the defendant was not liable for the debt so incurred. Id. Actions to recover town moneys must be brought by 1 R. 8. , 856, 1 2 R. 8., 478, 92, 93 Code, 113. See TOWN OF CHAUTAUQUA v. GIFPORD 159 SUPPLEMENTAL COMPLAINT Interpleader Code, % 122. See WILSON t>. LAWRENCE 598 SUPREME COURT Power of, to establish, destroyed will where portions of a will are revoked by codicil fraudulently procured, and destroyed the Supreme Court has power to establish and restore the portion destroyed the Sur- rogate' a Court has no such power. See HOOK t>. PRATT 1 08 Quasi officers of who are physician appointed by court to examine at to pregnancy of widow. See ROLLWAGEN 0. POWELL 210 Power of, to direct sale of vessel, owned by tenants in common Partition. See ANDREWS v. BBTTB 322 SURETY Mortgage agreement to extend between holder and grantee cove- nanting to assume, made without consent of grantor (mortgagor) discharges mortgagor. Bee CALVO t>. DA VIES 223 And lessee can be sued jointly, under Code, 120 Continuing guarantee. See DECKER e. GAYLORD 110 Liability of, on undertaking, where one only of two defendants can be invested on execution. See GROUSE . PADDOCK 680 SURFACE WATER Municipal corporation construction of streets.} Although no action can be maintained for the diversion from its ordinary course of the surface water arising from nuns and melting snow, yet if such, water be collected into a single channel and cast in ajarge volume upon the land of ai* adjacent owner, he may maintain an action to recover the damages sustained thereby. BASTABLE v. CITY OF SYRACUSE 087 INDEX. 713 SURPLUS MONEYS On tab of land under done of surrogate hit power to distribute. See ARROWSMTTH v. ARROWSMTTH .............................. 908 SURRENDER And cancellation of note, not paid infuU no right of action exists thereof ter for amount unpaid See KENT v. REYNOLDS .......................................... 650 SURROGATE Decree of, to pay claim for physician? fee* in examining at to pregnancy of widow, charged on estate by Supreme Court although not directly within his statutory powers upheld. See ROLLWAGEN . POWELL ..................................... 210 - Power of, to distribute surplus on sale of land*. See ARROWSMITH v. ABBOWSHITH ................................ 600 SURROGATE'S COURT Jurisdiction of, to establish destroyed teZZ.l The Surrogate's Court can only grant letters of probate on a perfected will, bat has no jurisdiction to establish a lost or destroyed will. HOOK . PRATT. . . . 108 8u.BVJ.viNQ PARTNER Trustee partnership effects.} A surviving partner has a legal right to the partnership effects, yet, in equity, is consid- ered a trustee to pay the debts and dispose of the effects for the benefit of himself, and the estate of his deceased partner. SKLDMOKE v. COLLIEH ..... 00 TAX Irregularity of assessment cured by imposing tax to the tame amount. See GUEST v. CITY OF BROOKLYN ......... . ....................... 07 - Illegal assessment action to vacate and set aside not maintainable, unless the defects in the assessment are such as would not appear in proceedings to enforce the lien thereof. Bee BOYLE v. CITY OF BROOKLYN ................................. 83 - Power of County Court to order refunding of. See MATTER OF N. Y. CATHOLIC PROTECTORY .................... 91 TAXES " Difference and costs and expenses on the resale."] On a resale of property for non-compliance with the terms of the previous sale, under the condition? of the sale, that the purchaser shall pay the "difference and costs and expenses on the resale," subsequent taxes are included. RUHE v. LAW, 851 TAXATION Of costs Certificate of county judge is conclusive upon the toot- ing officer, to show that the title to land came in question on the trial. V. O'CONITEB ......................................... 880 - Of national bank actual, not par value of stock, the basis of surplus, See PEOPLE t. COMMISSIONERS OF TAXES ........................ 588 THIRD PERSON Mortgagee righttosueon covenant made for his benefit. See CAMPBELL v. SMITH ......................................... TIOJUfiT OFFICE Erie Railway Co. not bound to keep open its ticket offlee. See BORDEAUX . ERIE RAILWAY Co. ............................ 570 TITLE TO LAND Justice's Court when not in question effect of judg *nent in ejectment. See HALEY v. WHEELER ......................................... Ml TITLE Condition subsequent Stranger to tide.] Hogan contracted to seD certain land to Mark, upon condition that no part thereof or buildings thereon " should ever be used or occupied as a tavern." Subsequently he conveyed the same land to trustees, subject to the said agreement Thereafter he and the trustees conveyed the land to Mark by a tripartite deed (reciting the agreement and subsequent conveyance to the trustees), " subject to and upon the condition hereinbefore expressed, unto the said Mark, his heirs and assigns." The deed contained a covenant by Hogan and the trustees that some or one of them were or was lawfully seized, etc., and full covenant of warranty by Hogan. Subsequently the trustees reconveyed to Hogan all the property undisposed of by them. Held (1), that the condition wa reserved to Hogan and not to the trustees; (2), that he WM not a stranger HUN VOL. VIII. 90 714 INDEX. TITUS Continued. to the title and that the reservation to him was valid; (8), that the exist- ence of the condition was such a defect as justified a purchaser in refusing to accept the title. POST t>. Wrau 411 When it passes on tale of personal property delivery distinction tottoeen acts to designate articles and those to ascertain their value, as affecting title. See BURROWS v. WHTTAKER 260 To real property when put in issue by the pleadings certificate of county judge conclusive in taxation of costs on taxing officer. See LILLIS t. O'CoNNBR 880 Ooods manufactured to order Payment of price after seeing them, and direction to ship is sufficient acceptance to transfer and vest title. See HUBBARD v. O'BRIEN 244 Defective, of railroad to land right to perfect under chapter 140, Laws of 1850. See MATTER OF PROSPECT PARK AND C. I. R R Co 80 TOWN Claims against right to sue town auditors board of supervisors commissioner of highway*. See SHERMAN v. TOWN OF HAMBURG . . 643 TOWN BONDS Issue of under chapter 953 of 1867, as amended by chapter 317 of 1868. See CULVER v. VILLAGE OF FORT EDWARD 840 TOWN MONEYS Action to recover must be brought by supervisor IR.8., 856, 1 2 R. 8. , 473, 92 . 93 Code, 113.] The collector of a town depos- ited with bankers moneys collected by him for taxes. Subsequently the super- visor agreed with the bankers that they could retain the moneys until wanted. Afterwards, on demand by him therefor, payment was refused. Held, that an action to recover the same could not be maintained in the name of the town, but must be brought by its supervisor. TOWN OF CHAUTAUQUA v. GIFFORD 168 TRESPASS Possession.] 1. Although, as a general rule, trespass tjuare elausum fregit can only be maintained by one in actual possession of the premises when the injury is committed, yet in the case of a disseisin the disseisee, after he has regained possession, may maintain the action against the disseisor for acts intermediate the disseisin and re-entry. HALEY v. WHBKLER 569 2. Justice'* Court title to land when not in question ejfect of judgment in ejectment.] Wheeler brought an action of ejectment against Haley, and, having recovered judgment therein, entered into possession of the premises ; subsequently this judgment was set aside, and upon ;he new trial Haley recovered a judgment, whereupon possession of the premises was surrendered to him by Wheeler. In an action of trespass quare clausum fregit by Haley to recover for acts committed by Wheeler while in possession under the first judgment, held, that he was entitled to recover. Held, further, that in such action the title to land did not come in question so as to deprive a justice of the peace of jurisdiction thereof, as the final judgment in the ejectment suit conclusively established that the title was in Haley as against Wheeler. Id. TRIAL By jury refusal to restate evidence, when requested by jury.] 1. On the trial of an action for work and labor done and materials furnished by the plaintiff for the defendant, after the jury had retired they requested of the court information as to what a witness for defendant had testified to, in reference to a portion of the work claimed for. Held, error for the court to refuse the request of the counsel for the defendant, made in the presence of plaintiffs counsel, to bring in the jury and state the evidence to them as requested. DREW p. ANDREWS t 2. Pleadings, not evidence to go to the jury. ] When the jury had re- turned into court, and stated that they had found for the plaintiff but fixed oo amount, held, error for the court to direct the jury to take the pleadings INDEX. 715 TRIAL Continued. TM and return again and fix the amount The pleadings were not evidence 3ven, beyond the portion thereof admitted in the answer. Id. Of issues by the court discretionary on the foreclosure of a mortgage the defense tfiereto bei/iy usury and fraud. See KNICKERBOCKER LIFE INS. Co. v. NELSON 91 TRUST Insurance assignment through coercion.] 1. Where a plaintiff under the influence and coercion of her husband, assigned to the defendant two policies of insurance, issued to her on the life of her husband, to secure a debt due from him to the defendant, the latter, fearing that the assignment was invalid under the laws of this State, in pursuance of au arrangement with the company, allowed the policies to be forfeited for non-payment of premi- ums, and received new policies from the company for his benefit as a cred- itor, for the same amounts, bearing the same numbers, referring to the same register hi the company's books, and for the same premiums, except that the latter were payable semi-annually instead of annually, such policies being issued upon the original applications and without a new examination. Held, that the new policies were to be considered as renewals of the old ones, and subject to a trust in favor of the plaintiff the same as was impressed upon the original ones. BARRY v. BRUNE 395 2. Mortgage.] No trust can be created and attached to an existing mortgage, so as to make it a valid security for any greater amount than that specified in the body, and upon the face thereof. See HTTBBELL v. BLAKESLEE 003 TRUSTEES Of corporation disagreement as to management of dissolution of stde of assets cfuip. 442, of 1876. See MATTER OF WOVEN TAPE SKIRT Co 50? TRUST ESTATE Services rendered to claim for, not a lien Ceslui que trust not necessary party to action to enforce.] 1. A party is not liable for any portion of a claim for services rendered to a trust estate, by reason of his subsequent receipt of a portion of such trust estate under the provisions of the will creating it, and is not a necessary party to an action against the trustees of such estate to recover a balance of a claim for such services. STANTON c. KINO 4 2. When services rendered to, a lien.] In what case a trustee may make a claim for services rendered to an estate a lien upon the trust estate, con- sidered. Id. UN CONTRADICTED STATEMENTS Credit due thereto how affected by fact that witness Juts an interest in the suit. See SHERIDAN v. MAYOR 484 UNDERTAKING On arrest liability of suritiet on, where one only of two defendants can be arrested on execution. See CROUSE r. PADDOCK 880 UNDERVALUATION By assessors of one party's property, gives no right to another, that his shatt also be undervalued. iiee PEOPLE EX REL. R, W. AND O. R R. Co. . DIXON 178 UNLAWFUL IMPRISONMENT Action for, against iudge when not maintainable, although sentence is unauthorized.] 1. The plaintiff was con- victed of a crime punishable by fine or imprisonment. The United States District Court, over which the defendant presided as judge, imposed both. The plaintiff paid the fine and applied to be released, because he had suf- fered one of the alternative punishments provided for the offense. The application was denied and the court directed the sentence pronounced to be vacated, and then sentenced the plaintiff to one year's imprisonment -nider his conviction (authority to so change the punishment having been preri- ouflly held by the Supreme Court of the United States to exist). On return to a writ of habeas corpus and a writ of certiorari issued by the United States Supreme Court, the plaintiff was discharged from custody, the court holding 716 INDEX. UNLAWFUL IMPRISONMENT Continued. that he could not lawfully be sentenced to imprisonment after what had transpired in the case. The plaintiff thereupon brought this action for unlawful imprisonment. Held, that it could not be maintained. LANGE v. BENEDICT 38t ~. Doubtful question judge required to deride.] Where, in the course of a judicial proceeding, a judge is required to pass upon a question, the law as to which is in such a condition as to afford ostensible support to each side of the proposition presented, so that different minds might well, and natu- rally would, be lead to different conclusions as to the proper course to be pursued in disposing of the case, a judge cannot be held personally liable for a decision made by him in good faith, and without malice, even though an appellate court should subsequently reverse such decision, and hold that the judge had no power to render or enforce the same. Id. 3. Following prior decision of appellate court.] Especially is the judge exempt from personal liability, when his action is founded upon a decision of an appellate tribunal to which he is bound to conform, affirming the existence of the authority exercised by him in passing the sentence in question. Id. UNSOUND MIND Inquisition Prirna facie evidence of. See HICKS v. MARSHALL 327 VENDOR AND PURCHASER Fraudulent representations made to the agent of one firm when acted upon by another firm by wltom such agent u afterwards employed liability for. See HILL . CABLET 636 Negotiable paper invalid in hands of payee bona fide purchaser of recovery by, restricted tc jmount paid. See TODD v. SHELBOUHNE 510 Promissory note duty of purchaser bona fide notice sufficient to require inquiry. See MABIE v. JOHNSON 300 Grant of lot on street fee to center, passes, when. See MOTT v. MOTT 474 Warranty Inspection of goods before delivery effect of Penalty. See AIcPARLiN v. BOYNTON 449 Qf promissory note in violation of statute of Pennsylvania bona fide purchaser, when protected Laws of another State knowledge of existence of a question of fact, not of law. See PALMERS. MINAB... 343 Mortgage covenant in deed, assuming enures to benefit of mortgagee distinction between such covenant when made by grantee and mortgagee. See CAMPBELL v. SMITH 6 Title when it passes Delivery Acts to designate articles to ascer- tain their value distinction. See BURROWS v. WHTTAKER. 260 VJKLNUJS Change of when right to absolute and not discretionary act* done virtute oMcii public officer. See PEOPLE v. KLNGBLEY 238 VERDICT For excessive damages when not set aside. See PECK v. N. Y. CEN. AND HUD. R R. R Co 286 Of jury there must be rational ground for. See McCAio v. ERIE RAILWAY Co 590 VERIFICATION Bui of particulars mechanic's Ken.] Where, at the time of serving a notice to foreclose a mechanic's lien, a bill of particulars was served, sworn by the claimant to be "in all respects true.to the beet of his knowledge and belief." Held, that the verification was sufficient. OBEY v. VOBHIS 619 INDEX. 717 PAUL VESSEL tiaieof owned by tenants in common power of Supreme Court to direct Jurisdiction of admiralty courts Partition of personal property. See ANDREWS v. BETTS , 822 VESTED REMAINDER Action to restrain waste who can maintain. J 1. The plaintiff was the owner of an estate in certain land for the life of B., to commence upon the termination of an estate of the defendant therein for the term of her natural life. Held, that he had a vested remainder therein, and could maintain an action to restrain the defendant from the commission of waste. WILLIAMS v. PEABODT 271 2. Residuary legatee when he may compel a discovery of personalty held by life beneficiary.] Defendant was entitled, under the will of her deceased husband, to use certain personal property, in her due discretion, for any pur- pose and in any reasonable manner, and in such use to consume and exhaust the same, if necessary for her own care and support, and the plaintiff was entitled to receive whatever might remain after her death. Held, that he was entitled to maintain an action to compel the defendant to render an account as to the ite'fns of personal property received by her, no inventory thereof having ever been made. Id. 3. Remainder. ] A testator bequeathed certain money to his two sisters, and upon the death of the survivor directed the same to be " distributed to or among such of the children of my deceased brother William, or their (said child- ren's) representatives, as the survivor of my said sisters shall, by will, or writ- ing in the nature thereof, direct, and in default of such writing, then that such money be distributed among such childr-en or their representatives per stirpes and not per capita, equally, share and share alike," Held, that the fund did not vest hi the ultimate legatees in remainder until the decease of the testator's surviving sister, and that neither the husbands nor the widows of children who died prior to that time, were entitled to participate in the distribution thereof. BROWN v. NICHOLSON 464 VTRTUTE OFFICII Acts done Venue change of when right to, absolute and not discretionary.] An action against a public officer for acts done virtute offlcii must be brought, so far as he is concerned, in the county where the cause of action, or some part thereof, arose. It is an absolute right, and not a matter of judicial discretion, and he cannot be deprived of this statutory right by joining other parties as defendants. The venue must first be correctly laid, and then the usual incidents of an action may occur ; and a motion may be made, after issue joined, to change the place of trial, on the ground of the impossibility of obtaining an impartial trial in the county designated ; but this ground is no answer to a motion before issue joined to change the venue, where the proper county has not been designated in the complaint PEOPLE v. KINOSLET 288 VOLUNTARY PAYMENT Of assessment under protest right to recover amount paid. See PEYSER v. MAYOR 418 "WAIVER Failure to serve in an action to foreclose a mechanic's lien, the bill of particulars required by section 10 of chapter 402 of 1854, is waived by the service of an answer, ana cannot be taken advantage of on the trial. NORCOTT v. FIRST BAPTIST CHURCH OF ROME 689 WALL Party Covenant by grantee to assume agreements to similar in principle to assumption of mortgage. See STEWART v. ALDRICH 84J WARRANTY Inspection of goods before delivery effect of.] 1. Where parties stipulate that articles to be manufactured shall be of a particular kind and quality, and at the same time stipulate that they shall be tested by some person selected by the purchaser before delivery, to ascertain whether they are of the specified kind and quality, and such test is in fact made by him, and the goods are thereupon delivered and accepted, there is, in the absence of fraud and collusion between the manufacturer and the person selected to test the goods, no remedy by action upon the contract, even 718 INDEX. WARRANTY Continued. PAHk though the goods, or some portion of them, are subsequently ascertained not to be equal to the warranty. The plaintiff agreed, in writing, to manufacture for the defendant certain saws of the " best cut steel, hardened and tempered, carefully ground to three gauges thin on back and filed, set and warranted best in every particu- lar. The saws to be tested by your man employed for the purpose of filing and finishing same." Held, that the defendant having appointed a man to test the saws in pursuance of the contract was bound by his decision, and could not thereafter set up a breach of the warranty as a defense to an action for the purchase-price. MCPARLIN v. BOYNTON 441 2. Penalty.] The contract further provided, that " all saws not taken by you in sixty days from completion of their manufacture we shall charge thereon interest at the rate of ten (10) per cent per annum." Held, that this meant that if, for any reason, defendant was not in readiness to receive the saws within sixty days, and their delivery was thereby postponed beyond that period, he should pay ten per cent for the period that might elapse between the expiration of sixty days from manufacture and the time of delivery. Id. WASTE Action to restrain who can maintain Vested remainderman. See WELLIAMS v. PEABODY 271 WATER Grant of use of amount not defined easement limited to amount first taken. See ONTHANK t>. LAKE SHORE AND M. S. R R Co 181 WTLL Providing for EQUAL division among next of kin, as in case of intestacy construction of as to rights of widow and child.] 1. A testator empowered his executors to pay to his sons, after their arrival at the age of twenty- one years, the whole or part of their portion of his estate as they should deem prudent. The will also provided, " aud in case the whole of said principal shall not be paid to them or either of them during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among, and paid to the persons entitled thereto, as their or either of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate." A son of the testator tlied before he had received his share, there being some $67,000 thereof in the hands of the executor at the date of bis death, leaving a widow and one child, an infant. Held, that the words " equally divided " among the persons entitled thereto, were restricted by the last part of the clause " and as if the same were personal property, and they or either of them had died intestate." The direc- tion was to distribute the property equally in the manner provided by law, as in case of intestacy; but as the law does not distribute equally between a widow and child, no other mode of distribution but the one established by statute as to personal property in case of intestacy was furnished, and it should be followed, and the widow take one-third and the child two-thirds MUKDOCK . WARD I 2. Portions of, revoked by codicil fraudulently procured, and destroyed Supreme Court has power to establish and restore the portion destroyed Surro- gate's Court, no such power.] A complaint alleged the fraudulent destruction, during the lifetime of the testator of certain clauses in his will, and prayed, among other things, that such clauses be restored and established as part of said will, setting forth such clauses and the beneficial interest thereunder of the plaintiff, who was neither heir at law or next of kin to the testator. Held, not demurrable on the ground that it did not state facts sufficient to constitute a cause of action. That the Surrogate's Court had no power to grant the relief; it could only Sant letters of probate on a perfected will, but had no jurisdiction to estab- h a lost or destroyed will. That, although the statute (title 1, chap. 6, 3 R S.) refers to a "lost or destroyed will," it should have a liberal construction in furtherance of jus- tice, and for the prevention of fraud; and the fraudulent destruction of a single item or clause, or distinct portion or provision of a will, must b INDEX. 719 VTHiL Continued. TM, considered as the destruction of a will by design, under section 68, or fraud- ulent under section 67, if such destruction affects the disposition of the prop- erty of the testator in any essential particular. That the court, under the provisions of the statute aforesaid, have ample power upon due proof of the allegations of the plaintiff's complaint, to restore the destroyed or suppressed portions of the will, and establish the same as it stood before the making of the codicil alleged to have been fraudulently procured ; and the probate of such codicil allowed or made by the surrogate did not preclude such investigation and decision, or bind o*r affect the plaintiff upon such question in the prosecution of her action. HOOK D. PRATT 103 Vested remainder Action to restrain waste who can maintain residuary legatee wlien he may compel a discovery of personalty held by life beneficiary. See WILLIAMS v. PEABODY 271 Remainder created by, when vested. See BROWN t>. NICHOLSON 464 Power of sale title to real estate subject to, in heirs until sale. See PEOPLE EX REL. SHAW t>. SCOTT 56w affected by interest in suit.] The rule, that where a disinterested witness testifies to the existence of a fact within his own knowledge, and nothing appears to discredit his statement, which is not inherently improbable, neither the court nor the jury can arbitrarily reject it, does not apply to the evidence of a person whose interest it is to establish the truth of what he swears to, as where he is to receive the fruits of the litigation, either partially or wholly, in case it may prove successful. SHERIDAN v. MAYOR '. . 424 3. Uncontradicted statements of party not conclusive.] The uncon- tradicted evidence of a party, or other interested witness, is not necessarily conclusive upon either the court or the jury. Id. Should not be asked to state t?ie amount of damages. See FLEMING v. D. AND H. CANAL Co 858 When a party to an action is required to attend before a judge to be txamined as a witness under 391 of the Code, has appeared by attorney, notice ff such examination must be served on the attorney as well as the party. See PLUMMER v. BELDEN 465 WRIT OF ERROR What errors will be considered on charge of judge.] Upon the trial of the plaintiff in error for rape, the court refused to charge that he must have "accomplished his purpose in spite of the utmost reluctance and resistance on her part." The prisoner was convicted of an wsault with intent to commit rape. Upon a writ of error to review this conviction, held, that as the refusal to charge, even if it were error, did not tn any way affect the crime of which he was convicted, but only that of which ie was acquitted, it furnished no ground to reverse the judgment. MYER v. PEOPLE 528 To Court of General Sessions tested and signed by County Judge a 8u HINM AN 9. PEOPLE 641 A 001 167827 3